Section 1048.
§ 1048. Office. 1. There shall be an office of administrative trials
and hearings which shall conduct adjudicatory hearings for all agencies
of the city unless otherwise provided for by executive order, rule, law
or pursuant to collective bargaining agreements. The office shall be
directed by the chief administrative law judge, who shall be an attorney
admitted to practice for at least five years in the state of New York.
The chief administrative law judge shall be appointed by the mayor.
2. Notwithstanding any inconsistent provision of law and except as
provided in subdivision five of this section, the mayor shall be
authorized to designate by executive order the office of administrative
trials and hearings as the tribunal for the impartial administration and
conduct of adjudicatory hearings for violations of this charter, the
administrative code of the city of New York, rules promulgated pursuant
to this charter or such code and any other laws, rules, regulations or
other policies enforced or implemented by the agencies of the city
through the conduct of adjudications. Pursuant to any such order, the
mayor may transfer entire tribunals or parts thereof, or categories of
adjudications to such office, which may perform such responsibilities,
including responsibilities delegated elsewhere by this charter or other
law, as the mayor shall direct in such order. In furtherance of any such
order, agencies shall be authorized to establish their tribunals, or
parts thereof, within such office. No existing right or remedy of any
character shall be lost, impaired or affected by reason of a transfer of
a tribunal or part thereof or category of adjudications pursuant to this
subdivision except as may be necessary to implement such transfer.
3. Any order issued by the mayor pursuant to subdivision two of this
section may include provision for matters pending at the time that any
transfer pursuant to such subdivision shall take effect and may in
appropriate instances deem agency rules in effect on the date of any
transfer to be rules of the office of administrative trials and
hearings. Any such order may in addition address circumstances in which
agencies shall continue to make final findings of fact and/or decisions,
determinations or orders.
4. (a) The mayor shall constitute a committee to evaluate the
adjudicatory functions carried out by city agencies and to make
recommendations with respect to the transfers authorized by subdivision
two of this section. Such committee shall be chaired by the deputy mayor
for legal affairs or another designee of the mayor. It shall have
representatives from the office of administrative trials and hearings,
the law department, the department of citywide administrative services
and any other agency the mayor deems necessary to implement the
transfers described in this section. The work of such committee shall be
deemed complete upon submission to the mayor of a final report
identifying the tribunals or parts thereof, or categories of
adjudications, that have been consolidated or that should be considered
for future consolidation, provided that the mayor may reconstitute the
committee at any time to perform the functions described in this
section.
(b) Before recommending transfers of tribunals or parts thereof, or of
categories of adjudications, the committee shall solicit comments from
the public, including, to the extent practicable, any segments of the
public particularly affected by such transfers. In furtherance of such
solicitation, the committee or a person or agency designated by the
committee shall hold a public hearing, on notice of at least twenty days
published in the City Record. Such notice shall specify the transfers
that are under consideration by the committee for recommendation to the
mayor.
(c) The authority conferred upon the mayor by subdivisions two and
three of this section shall not be limited by or contingent upon the
requirements of this subdivision.
5. Subdivisions two through four of this section shall not apply to
the office of administrative tax appeals, including the tax commission
and the tax appeals tribunal, or the board of standards and appeals.
Section 1049.
§ 1049. Powers of the chief administrative law judge.
1. (a) The chief administrative law judge shall have authority to
direct the office established pursuant to section one thousand
forty-eight with respect to its management and structure and to appoint
a staff of administrative law judges. Each administrative law judge
shall be an attorney admitted to practice in the state of New York for
at least five years. Each administrative law judge shall be appointed
for a term of five years removable only for cause after notice and
opportunity for a hearing on a record.
(b) The provisions of paragraph (a) of this subdivision relating to
terms and qualifications shall not be mandatory with respect to any
administrative law judge or hearing officer transferred from another
agency pursuant to subdivision two of section one thousand forty-eight
of this chapter or assigned to any particular tribunal or part thereof,
or category of adjudications, transferred pursuant to such subdivision
that may be specified by the chief administrative law judge. The chief
administrative law judge may prescribe alternative qualifications and
terms and conditions of employment for any administrative law judges or
hearing officers who are not subject to paragraph (a) of this
subdivision.
2. (a) The chief administrative law judge shall establish rules for
the conduct of hearings, in accordance with the requirements of chapter
forty-five of the charter.
(b) In conjunction with the mayor and in accordance with the
requirements of section thirteen-a of the charter, the chief
administrative law judge shall promulgate and may from time to time
amend rules establishing a code or codes of professional conduct
governing the activities of all administrative law judges and hearings
officers in city tribunals.
3. In the conduct of an adjudication, an administrative law judge may:
(a) hold conferences for the settlement or simplification of the
issues;
(b) administer oaths and affirmations, examine witnesses, rule upon
offers of proof, receive evidence, and oversee and regulate discovery
procedures;
(c) upon the request of an agency or any party, or upon the
administrative law judge's own volition, subpoena the attendance of
witnesses and the production of books, records, or other information;
(d) regulate the course of the hearing in accordance with agency rules
and chapter forty-five of the charter, provided that if agency rules are
silent as to a particular matter, the rules of the office of
administrative trials and hearings shall apply;
(e) dispose of procedural requests or similar matters;
(f) make recommended or final findings of fact or decisions,
determinations or orders, as authorized by law;
(g) take any other action authorized by law or agency rule consistent
therewith.
Section 1049-a.
§ 1049-a. Environmental control board. a. There shall be in the office
of administrative trials and hearings an environmental control board
consisting of the commissioner of environmental protection, the
commissioner of sanitation, the commissioner of buildings, the
commissioner of health and mental hygiene, the police commissioner, the
fire commissioner and the chief administrative law judge of the office
of administrative trials and hearings, who shall be chair, all of whom
shall serve on the board without compensation and all of whom shall have
the power to exercise or delegate any of their functions, powers and
duties as members of the board, and six persons to be appointed by the
mayor, with the advice and consent of the city council, who are not
otherwise employed by the city, one to be possessed of a broad general
background and experience in the field of air pollution control, one
with such background and experience in the field of water pollution
control, one with such background and experience in the field of noise
pollution control, one with such background and experience in the real
estate field, one with such background and experience in the business
community, and one member of the public, and who shall serve for
four-year terms. Such members shall be compensated at a rate that may be
specified by the chair and approved by the mayor. Within the board's
appropriation, the chair may appoint an executive director, subject to
the approval of the board, and such hearing officers, including
non-salaried hearing officers, and other employees as the chair may from
time to time find necessary for the proper performance of the board's
duties.
b. The environmental control board may adopt and amend regulations not
inconsistent with any provision of law:
(1) regulating or prohibiting the emission into the open air from any
source, whether fixed or movable, and whether on land or waters of any
harmful or objectionable substances including, but not limited to,
smoke, soot, dust, fumes, flyash, gas vapors and odors, and the
installation, construction or alteration of equipment giving forth such
emissions into the open air insofar as such emissions are effected
thereby; and
(2) regulating or prohibiting the emission into the waters within and
about the city of New York from any source whether fixed or movable and
whether on land or water of any harmful or objectionable substances,
contaminants and pollutants.
b-1. The environmental control board shall promulgate rules or
regulations not inconsistent with any provision of law:
(1) providing that appropriate language assistance services are
afforded respondents whose primary languages are not English to assist
such respondents in communicating meaningfully with hearing officers;
(2)(a) providing that if a notice of violation sets forth a specific
hearing date and hearing office and the respondent timely appears on
such date at such office pursuant to that notice of violation, then the
hearing officer may exercise his or her discretion to adjourn the
hearing only: (i) if a representative of the petitioning agency appears
at the hearing; (ii) if, due to extraordinary circumstances, a
representative of the petitioning agency is not present at the hearing;
or (iii) if the respondent consents to the adjournment;
(b) notwithstanding any other provision of this charter, for the
purpose of making an appearance under this paragraph, any city agency
that issues notices of violations returnable to the environmental
control board may delegate authority to appear on its behalf to any
representative authorized to appear on behalf of any other city agency
that issues notices of violation returnable to the environmental control
board; and
(3) providing that if (i) a hearing has been adjourned by a hearing
officer solely for the purpose of obtaining the presence and testimony
of the officer of the petitioning agency who issued the subject notice
of violation, (ii) the respondent timely appears on the adjourned
hearing date, and (iii) such officer of such agency fails to timely
appear on the adjourned hearing date, then the hearing shall not be
further adjourned solely to obtain the presence and testimony of such
officer of such agency, unless the respondent consents to the
adjournment or the hearing officer determines that extraordinary
circumstances warrant the adjournment.
c. (1) The environmental control board shall enforce the provisions of
the charter and the administrative code, and any rules and regulations
made thereunder, which relate to:
(a) the cleanliness of the streets;
(b) the disposal of wastes;
(c) the provision of a pure, wholesome and adequate supply of water;
(d) the prevention of air, water and noise pollution;
(e) the regulation of street peddling;
(f) the prevention of fire and danger to life and property therefrom
which are within the jurisdiction of the fire department and which the
fire commissioner shall designate by rule or regulation;
(g) the construction, alteration, maintenance, use, occupancy, safety,
sanitary condition, mechanical equipment and inspection of buildings or
structures and the regulation, inspection and testing of wiring and
appliances for electric light, heat and power in or on buildings or
structures in the city which are within the jurisdiction of the
department of buildings or the department of small business services and
which the commissioner of buildings or the commissioner of small
business services shall designate by rule or regulation;
(h) the response to emergencies caused by releases or threatened
releases of hazardous substances;
(i) the use and regulation of all property subject to the jurisdiction
of the department of parks and recreation;
(j) the reporting of information relating to the amount, location and
nature of hazardous substances, and the labeling of hazardous
substances;
(k) the construction, maintenance and repair and obstruction or
closure of public roads, streets, highways, parkways, bridges and
tunnels which are within the jurisdiction of the department of
transportation and the department of information technology and
telecommunications;
(l) the use and regulation of all property subject to the jurisdiction
of the department of small business services;
(m) the defacement of property; and
(n) landmarks and historic districts within the jurisdiction of the
landmarks preservation commission.
(2) The board shall have concurrent jurisdiction with the board of
health to enforce those provisions of the health code and the rules and
regulations relating thereto which the board of health shall designate.
(3) The board shall have authority from time to time to make, amend
and rescind such rules and regulations as may be necessary to carry out
its duties under this subdivision.
d. (1) (a) The environmental control board shall conduct proceedings
for the adjudication of violations of the laws, rules and regulations
enforced by it pursuant to the provisions of subdivision c of this
section or of any other law providing for enforcement by the
environmental control board in accordance with this paragraph (1) and
with rules and regulations promulgated by the board, and shall have the
power to render decisions and orders and to impose the civil penalties
provided under law for such violations.
(b) The form and wording of notices of violation shall be prescribed
by the board. The notice of violation or copy thereof when filled in and
served shall constitute notice of the violation charged, and, if sworn
to or affirmed, shall be prima facie evidence of the facts contained
therein.
(c) The notice of violation shall contain information advising the
person charged of the manner and the time in which such person may
either admit or deny the violation charged in the notice. Such notice of
violation shall also contain a warning to advise the person charged that
failure to plead in the manner and time stated in the notice may result
in a default decision and order being entered against such person. The
original or a copy of the notice of violation shall be filed and
retained by the board and shall be deemed a record kept in the ordinary
course of business.
(d) Where a respondent has failed to plead within the time allowed by
the rules of the board or has failed to appear on a designated hearing
date or a subsequent date following an adjournment, such failure to
plead or appear shall be deemed, for all purposes, to be an admission of
liability and shall be grounds for rendering a default decision and
order imposing a penalty in the maximum amount prescribed under law for
the violation charged.
(e) Where a proceeding has been referred by the board to a hearing
officer, upon the failure of any party to respond properly to a lawful
discovery order or request made pursuant to rules of the board governing
discovery, or upon any party's wrongful refusal to answer questions or
produce documents, the hearing officer may take whatever action he or
she deems appropriate including, but not limited to, preclusion of
evidence or witnesses, or striking the pleadings or defenses of such
party. It shall not be necessary for a party to have been subpoenaed to
appear or produce documents at any properly ordered discovery proceeding
for such sanctions to be applicable.
(f) Where the rules of the board permit exceptions to be filed with
the board from a recommended decision and order issued pursuant to this
subdivision and such exceptions are filed pursuant to the rules of the
board, if no final decision and order has been issued by the board to
the parties after the expiration of one hundred eighty days from the
filing of the exceptions, a respondent who filed such exceptions may
seek, at any time after the expiration of the one hundred eighty days,
judicial review pursuant to article seventy-eight of the New York civil
practice law and rules, and if a respondent does so, the recommended
decision and order issued pursuant to this subdivision shall be deemed
the final decision and order of the board, provided that no respondent
may rely upon this subparagraph to have a recommended decision and order
deemed a final decision and order of the board unless: (i) at least
forty-five days before the filing of any petition pursuant to article
seventy-eight of the New York civil practice law and rules, such
respondent shall have filed with the board written notice, pursuant to
its rules, of the respondent's intention to file such petition; and (ii)
such respondent has served such petition on the board pursuant to the
New York civil practice law and rules. The board may issue a final
decision and order at any time after the respondent has filed with the
board written notice of his or her intention to file such petition,
provided that the respondent has not filed such petition on a day prior
to the board's issuance of its final decision.
(g) Any final order of the board imposing a civil penalty, whether the
adjudication was had by hearing or upon default or otherwise, shall
constitute a judgment rendered by the board which may be entered in the
civil court of the city of New York or any other place provided for the
entry of civil judgments within the state, and may be enforced without
court proceedings in the same manner as the enforcement of money
judgments entered in civil actions; provided, however, that no such
judgment shall be entered which exceeds the sum of twenty-five thousand
dollars for each respondent.
(h) Notwithstanding the foregoing provision, before a judgment based
upon a default may be so entered the board must have notified the
respondent by first class mail in such form as the board may direct: (i)
of the default decision and order and the penalty imposed; (ii) that a
judgment will be entered in the civil court of the city of New York or
any other place provided for the entry of civil judgments within the
state of New York; and (iii) that entry of such judgment may be avoided
by requesting a stay of default for good cause shown and either
requesting a hearing or entering a plea pursuant to the rules of the
board within thirty days of the mailing of such notice.
(i) A judgment entered pursuant to this paragraph shall remain in full
force and effect for eight years.
(j) Notwithstanding any inconsistent provision of section fifteen
hundred four of the New York city civil court act, an execution with
respect to a judgment of the board arising out of any violation of a
provision of chapter one of title sixteen of the administrative code of
the city of New York shall be directed only to the sheriff.
(k) The board shall develop and implement technology to enable
electronic case management, including but not limited to: online
adjudication and payments in appropriate cases; more efficient
administration of case conferences, hearings and appeals; electronic
case scheduling; and generation of data and other reports to enhance the
efficiency and increase public accountability of board adjudication
functions. Not later than December 1, 2008, the board shall report to
the city council on its plans and progress in fulfilling the
requirements of this subparagraph and shall include in its report a
projected schedule for implementation.
(2) (a) The environmental control board shall not enter any final
decision or order pursuant to the provisions of paragraph one of this
subdivision unless the notice of violation shall have been served in the
same manner as is prescribed for service of process by article three of
the civil practice law and rules or article three of the business
corporation law, except that:
(i) service of a notice of violation of any provisions of the charter
or administrative code the enforcement of which is the responsibility of
the fire commissioner, the commissioner of buildings, the commissioner
of environmental protection, the commissioner of transportation, the
commissioner of small business services, the landmarks preservation
commission or the commissioner of the department of information
technology and telecommunications and over which the environmental
control board has jurisdiction, may be made by delivering such notice to
a person employed by the respondent on or in connection with the
premises where the violation occurred, provided however, that the
department of buildings and the fire department may not utilize the
procedures set forth in this item to serve a notice of violation
relating to commercial premises or residential premises with a legal
occupancy of four or more dwelling units; and
(ii) service of a notice of violation of any provision of the charter
or administrative code, the enforcement of which is the responsibility
of the commissioner of sanitation, the commissioner of buildings or the
commissioner of the fire department and over which the environmental
control board has jurisdiction, may be made by affixing such notice in a
conspicuous place to the premises where the violation occurred; and
(iii) service of a notice of violation of any provision of the
administrative code relating to the prevention of noise pollution caused
by an audible motor vehicle burglar alarm and over which the
environmental control board has jurisdiction may be served upon the
owner of a motor vehicle by affixing such notice to said vehicle in a
conspicuous place; and
(iv) service of a notice of violation of any of the provisions of
section 10-119 or 10-120 of the administrative code of the city of New
York and over which the environmental control board has jurisdiction,
may be made by certified mail, return receipt requested, to the
respondent's last known residence or business address, provided that
delivery of such notice shall be restricted to the respondent. Service
by certified mail shall be deemed complete upon mailing of the notice of
violation unless the notice of violation is returned to the sender by
the United States postal service for any reason other than refusal of
delivery.
(b) Such notice may only be affixed or delivered pursuant to items (i)
and (ii) of subparagraph (a) of this paragraph where a reasonable
attempt has been made to deliver such notice to a person in such
premises upon whom service may be made as provided for by article three
of the civil practice law and rules or article three of the business
corporation law. When a copy of such notice has been affixed or
delivered, pursuant to items (i) and (ii) of subparagraph (a) of this
paragraph, a copy shall be mailed to the respondent at the address of
such premises. In addition to the foregoing mailing, if the respondent
is neither the owner nor the managing agent nor the occupying tenant of
such premises, then a copy of the notice shall also be mailed to the
respondent at such respondent's last known residence or business
address, and, if the respondent is the owner or agent of the building
with respect to which such notice was issued and the identity of and an
address for such person is contained in any of the files specified in
items (i), (ii) and (iii) of this subparagraph, a copy of the notice
shall also be mailed:
(i) to the person registered with the department of housing
preservation and development as the owner or agent of the premises, at
the address filed with such department in compliance with article two of
subchapter four of chapter two of title twenty-seven of the
administrative code; or
(ii) to the person designated as owner or agent of the building or
designated to receive real property tax or water bills for the building
at the address for such person contained in one of the files compiled by
the department of finance for the purpose of the assessment or
collection of real property taxes and water charges or in the file
compiled by the department of finance from real property transfer forms
filed with the city register upon the sale or transfer of real property;
or
(iii) to the person described as owner or agent of the premises, at
the address for such person contained in the files of the agency which
issued such notice of violation compiled and maintained for the purpose
of the enforcement of the provisions of the charter or administrative
code or other law over which such agency has jurisdiction.
(c) Proof of such service made pursuant to item (i) or (ii) of
subparagraph (a) of this paragraph and subparagraph (b) of this
paragraph shall be filed with the environmental control board within
twenty days; service shall be complete ten days after such filing.
(3) The environmental control board may apply to a court of competent
jurisdiction for enforcement of any other decision or order issued by
such board or of any subpoena issued by such board.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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