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a. A business entity required by this chapter to be licensed by or registered with the commissioner pursuant to this chapter shall be liable for violations of any of the provisions of this chapter or any rules promulgated pursuant thereto committed by any of its principals, employees or agents.
b. In any civil action or administrative proceeding against an employee of a business entity for a violation of this chapter or any rules promulgated pursuant thereto, it shall be an affirmative defense that the employee was acting within the scope of his or her employment when the action or actions constituting the alleged violation were committed and that such action or actions were committed pursuant to an instruction given to such employee by such business entity or by any principal, officer or agent of such business entity, provided, however, that this subdivision shall not be applicable to a violation of section 22-203, subdivision e of section 22-204, subdivision e of section 22-206, subdivision c of section 22-208, paragraphs ii and iii of subdivision b of section 22-215 or subdivision b of section 22-219 of this chapter and any rules promulgated pursuant thereto.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1995/050.
a. Except as otherwise provided in subdivision b of this section, any person who violates any provision of this chapter or any of the rules promulgated pursuant thereto shall be liable for a civil penalty which shall not exceed ten thousand dollars for each such violation. Such civil penalty may be recovered in a civil action brought in a court of competent jurisdiction or an administrative proceeding before the environmental control board.
b. (i) Any person who violates subdivision a of section 22-204, subdivision a of section 22-206, subdivision c of section 22-208 or section 22-219 of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, be punished for each violation by a criminal fine of not more than ten thousand dollars or by imprisonment not exceeding six months, or both; and any such person shall also be subject to a civil penalty of not more than five thousand dollars for each day of such violation to be recovered in a civil action brought in a court of competent jurisdiction or an administrative proceeding before the environmental control board.
(ii) Any person who interferes or attempts to interfere with the conduct of loading or unloading services authorized pursuant to this chapter, shall be guilty of a misdemeanor and, upon conviction thereof, be punished for each such violation by a criminal fine of not more than ten thousand dollars or by imprisonment not exceeding six months, or both and any such person shall also be subject to a civil penalty of not more than five thousand dollars for each such violation to be recovered in a civil action brought in a court of competent jurisdiction or an administrative proceeding before the environmental control board for each day that the violation continues.
(iii) Any person who intentionally or without permission of the owner or other person having lawful possession of such property destroys or damages property or equipment associated with loading or unloading services authorized pursuant to this chapter shall be guilty of a misdemeanor and, upon conviction thereof, be punished for each such violation by a criminal fine of not more than ten thousand dollars or by imprisonment not exceeding six months, or both and any such person shall also be subject to a civil penalty of not more than five thousand dollars for each such violation to be recovered in a civil action brought in a court of competent jurisdiction or an administrative proceeding before the environmental control board.
(iv) The corporation counsel is authorized to commence a civil action on behalf of the city for injunctive relief to restrain or enjoin any violation of this chapter and for civil penalties.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1995/050.
a. The commissioner shall require that an applicant submitting a proposal to conduct an unloading business or a loading business, or seeking a temporary license to conduct such a business, and an applicant for a class A photo identification card shall:
(i) be fingerprinted by a person designated for such purpose by the commissioner or the department of investigation and pay a fee to be submitted to the division of criminal justice services and/or the federal bureau of investigation for the purposes of obtaining criminal history records; and
(ii) provide to the commissioner, upon a form prescribed by the commissioner and subject to such minimum dollar thresholds and other reporting limitations as the commissioner may establish by rule those of the following items that the commissioner may determine are necessary and appropriate to determine the good character, honesty and integrity of applicants for the type of license, registration or photo identification card for which application is being made:
(a) a listing of the names, and home and business addresses and telephone numbers of any person having a beneficial interest in the applicant, and the amount and nature of such interest;
(b) a listing of the names, and home and business addresses of all principals of the applicant;
(c) a listing of the amounts in which the applicant is indebted, including mortgages on real property, and the names, and home and business addresses of all persons to whom each such debt is owed;
(d) a listing of the applicant's real property holdings, mortgages or other interests in real property other than a primary residence and the names, and home and business addresses of all co-owners of such interest;
(e) a listing of all loans and instruments of indebtedness held by the applicant, other than the mortgage or other interest in real property specified in clause (d) of this paragraph, the amount of such debt, and, for each such debt, the names, and home and business addresses of such debtors;
(f) the name and address of any business in which the applicant holds an equity or debt interest, excluding any interest in publicly traded stocks or bonds;
(g) the names, and home and business addresses of all persons or entities from whom the applicant has received gifts valued at more than one thousand dollars in any of the past three years, and the names, and home and business addresses of all persons or entities excluding any organization recognized by the Internal Revenue Service under section 501(c)(3) of the Internal Revenue Code to whom such applicant has given gifts of such value in any of the past three years;
(h) a listing of all criminal convictions, in any jurisdiction, of the applicant;
(i) a listing of all pending civil or criminal actions to which such applicant is a party and has been served;
(j) a listing of any determination by a federal, state or city regulatory agency of a violation by such applicant of conditions of his or her license or of laws, rules or regulations relating to the conduct of the applicant's business;
(k) a listing of any criminal or civil investigation by a federal, state, or local prosecutorial agency, investigative agency or regulatory agency of which the applicant has or should have knowledge, in the five year period preceding submission of the application, wherein such applicant has:
(A) been the subject of such investigation, or
(B) received a subpoena requiring the production of documents or information in connection with such investigation;
(l) a certification that the applicant has paid all federal, state, and local income and business taxes related to the applicant's business for which the applicant is responsible for the three tax years preceding the date of the application or documentation that the applicant is contesting such taxes in a pending judicial or administrative proceeding or otherwise pursuant to applicable procedures of the taxing authority; and
(m) such additional information concerning good character, honesty and integrity that the commissioner may deem appropriate and reasonable. The commissioner may require that applicants pay such fees to cover the expenses of the background investigations provided for in this subdivision as are set forth in the rules promulgated pursuant to section 22-223 of this chapter.
b. The commissioner may, after notice and the opportunity to be heard, refuse to consider a licensing proposal from, or refuse to issue a license to, an unloading or loading business or a class A photo identification card to a person required by subdivision a of section 22-203 of this chapter to possess such identification card when any of the principals of such business or such person lacks good character, honesty and integrity or may defer the decision whether to issue such license or photo identification card or to consider such proposal when there is a pending indictment or civil or criminal action or administrative proceeding as provided in paragraph (ii) of this subdivision. Such notice shall specify the reasons for such refusal or deferral. In making such determination, the commissioner may consider, but not be limited to:
(i) failure by the applicant to provide truthful information in connection with the application;
(ii) a pending indictment or criminal action against such applicant for a crime which under this subdivision would provide a basis for the refusal of such license or photo identification card, or a pending civil action or administrative proceeding to which such applicant is a party and which relates to the fitness to conduct the business or perform the work for which the license or photo identification card is sought, in which cases the commissioner may defer consideration of a proposal or application until a decision has been reached by the court or administrative tribunal before which such action or proceeding is pending, unless such applicant demonstrates to the commissioner that such pending action or proceeding should not be the basis for deferral of the license or photo identification card or consideration of the proposal;
(iii) conviction of such applicant for a crime which, under article twenty-three-A of the correction law, would provide a basis for the denial of a license to conduct a business in the market area;
(iv) commission of a racketeering activity or association with a person who has been convicted for a racketeering activity when the applicant knew or should have known of such conviction, including but not limited to the offenses listed in subdivision one of section nineteen hundred sixty-one of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1961, et seq.) or of an offense listed in subdivision one of section 460.10 of the penal law, as such statutes may be amended from time to time, or the equivalent offense under the laws of any other jurisdiction;
(v) association with any member or associate of an organized crime group as identified by a federal, state or city law enforcement or investigative agency when the applicant knew or should have known of the organized crime associations of such person; or
(vi) failure to pay any tax, fine, penalty, fee related to the applicant's business for which liability has been admitted by the person liable therefor, or for which judgment has been entered by a court or administrative tribunal of competent jurisdiction and enforcement of such judgment has not been stayed.
c. The factors set forth in subdivision b of this section shall also be grounds for the commissioner, pursuant to sections 22-209 or 22-211 of this chapter, to refuse to register, or to suspend or revoke the registration of, a wholesaler or a seafood deliverer; and to refuse to issue a photo identification card to, or to suspend or revoke the photo identification card of, a principal, employee or agent of a wholesaler or seafood deliverer.
d. The commissioner may require that an applicant submitting a licensing proposal for any license required pursuant to this chapter or an application for registration as a wholesaler or seafood deliverer shall submit such information regarding the applicant's business as the commissioner shall require in order to demonstrate the financial responsibility to conduct the business for which such license or registration is required, and may refuse to issue a license or registration to any applicant who has not, in the commissioner's determination, demonstrated such financial responsibility.
e. The commissioner may refuse to issue a license to, or consider a proposal from, the business of an applicant or issue a class A photo identification card to a person required by subdivision a of section 22-203 of this chapter to possess such identification card when such applicant or such person has knowingly failed to provide the information and/or documentation required by the request for licensing proposals or application or who has otherwise failed to demonstrate eligibility for such license or photo identification card under this chapter or any rules promulgated pursuant thereto.
f. The commissioner may refuse to issue a license to, or consider a proposal from, the business entity of an applicant, or issue a class A photo identification card to a person required by subdivision a of section 22-203 of this chapter to possess such identification card when (i) the business entity of such applicant or such applicant was previously issued a license or class A photo identification card under this chapter and such license or card was revoked pursuant to the provisions of this chapter or any rules promulgated pursuant thereto; or (ii) such applicant has been determined to have committed any of the acts which would be a basis for the suspension or revocation of a license pursuant to this chapter or any rules promulgated pursuant thereto.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1995/050 and L.L. 1997/028.
a. In addition to the penalties provided in section 22-215 of this chapter, the commissioner may, after due notice and opportunity for a hearing, take action pursuant to subdivisions b and c of this section.
b. The commissioner may revoke or suspend a license or class A photo identification card issued pursuant to the provisions of this chapter when the licensee and/or a principal, employee or agent of a licensee or a person to whom such photo identification card has been issued:
(i) has been found to be in violation of this chapter or any rules promulgated pursuant thereto;
(ii) has repeatedly failed to obey lawful orders of the market manager or his or her staff;
(iii) has failed to pay any fines or civil penalties imposed pursuant to this chapter or the rules promulgated pursuant thereto;
(iv) has been found in violation of any laws prohibiting deceptive, unfair, or unconscionable trade practices, or has been found in persistent or substantial violation of any city, state, or federal law, rule or regulation regarding the handling of seafood;
(v) whenever, in relation to an investigation conducted pursuant to this chapter, the commissioner determines, after consideration of the factors set forth in subdivision b of section 22-216 of this chapter, that the licensee, any principal of the licensee or a person required to possess a class A photo identification card lacks good character, honesty and integrity;
(vi) whenever there has been any false statement or misrepresentation as to a material fact in the application or accompanying papers upon which the issuance or renewal of the license or photo identification card was based; or (vii) whenever the licensee has failed to notify the market manager of any material change, as required by rules promulgated by the commissioner pursuant to section 22-223 of this chapter, in the information required to be provided on the application for such license, or of the arrest or criminal conviction of the licensee or any of the principals of the licensee, or of the arrest or criminal conviction of any employees or agents of the licensee of which the licensee had knowledge or should have known.
c. The commissioner may revoke or suspend a registration or a class B photo identification card issued pursuant to this chapter when the person to whom such registration or card was issued:
(i) has been found to be in persistent or substantial violation of this chapter or any rules promulgated pursuant thereto;
(ii) has repeatedly failed to obey lawful orders of the market manager or his or her staff;
(iii) whenever there has been any false statement or misrepresentation as to a material fact in the papers upon which registration or issuance of the photo identification card was based;
(iv) has failed to pay any fines or civil penalties imposed pursuant to this chapter or the rules promulgated pursuant thereto;
(v) has been found in violation of any laws prohibiting deceptive, unfair, or unconscionable trade practices, or has been found in persistent or substantial violation of any city, state, or federal law, rule or regulation regarding the handling of seafood;
(vi) has been found in violation of any city, state or federal law, rule or regulation when such violation is inimical to the purpose and intent of this chapter; or
(vii) has failed to notify the commissioner of any material change, in the information submitted in the application for registration, or of the arrest or criminal conviction of the registrant or any of the principals of the registrant, or of the arrest or criminal conviction of any employees or agents of the registrant of which the registrant had knowledge or should have known.
d. An order of suspension pursuant to this section shall specify the period during which such suspension shall remain in effect; such period shall be reasonable in relationship to the violation or violations underlying the suspensions.
e. For purposes of this section:
(i) "persistent" shall mean three or more violations within a six month period; and
(ii) "substantial violation" shall mean a violation which has a bearing on the continued fitness of a licensee, registrant or holder of a photo identification card to operate a business or work in the market area.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1995/050.
Notwithstanding any other provision of this chapter or rules promulgated pursuant thereto, the commissioner may, if he or she determines that the conduct of an unloading business, a loading business, a wholesale seafood business or a seafood delivery business, or the presence of any person in the market area creates an imminent danger to life or property, immediately suspend a license, registration or a photo identification card without a prior hearing, provided that provision shall be made for an immediate appeal of such suspension to a deputy commissioner of the department who shall determine such appeal forthwith. In the event that the deputy commissioner upholds the suspension, an opportunity for a hearing shall be provided on an expedited basis, within a period not to exceed four business days and the commissioner shall issue a final determination no later than four business days following the conclusion of such hearing; and provided further that the commissioner may, upon application by a business entity whose license or registration has been suspended, permit such business entity to remain in the market area for such time as is necessary to allow for the expeditious sale, consignment or removal of a perishable product if, in the commissioner's best judgment, such permission is consistent with the safety of the market area.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1995/050.
a. Suspension or revocation of a license or the discontinuance of business operations in the market area by a license shall require the immediate surrender to the market manager of the license and all photo identification cards issued for principals, employees and/or agents of the licensee.
b. Suspension or revocation of a registration or the discontinuance of business operations in the market area by a registrant shall require the immediate cessation of use of a registration number and the immediate surrender of all decals, stickers and photo identification cards issued to such registrant and the principals, employees and/or agents of the registrant.
c. A person who discontinues his or her employment in the market area shall immediately surrender his or her photo identification card to the market manager.
d. Violation of the provisions of subdivisions b or c of this section where such license or registration is under suspension may result in revocation of the license or registration or criminal or civil penalties as provided in subdivision b of section 22-215 of this chapter, or both.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1995/050.
a. Any police officer or authorized officer or employee of the department may, upon service of a notice of violation or criminal summons upon the owner or operator of a vehicle or other property or equipment seize such vehicle or such other property or equipment which such police officer or authorized officer or employee has reasonable cause to believe is being used in connection with an act constituting a violation of subdivision a of section 22-204, subdivision a of section 22-206 or subdivision c of section 22-208 of this chapter. Any vehicle, property or equipment seized pursuant to this subdivision shall be delivered into the custody of the department or other appropriate agency. Where a notice of violation has been served, a hearing to adjudicate the violation underlying the seizure shall be held before the environmental control board within five business days after the seizure and such board shall render a decision within five business days after the conclusion of the hearing. Where a criminal summons has been served, a hearing to adjudicate the violation underlying the seizure shall be held before a court of competent jurisdiction. In the event that such court or the environmental control board determines that there has been no violation, the vehicle, property or equipment that was seized shall be released forthwith to the owner or any person authorized by the owner to take possession of such vehicle, property or equipment.
b. Except as otherwise provided in subdivision a of this section or where notice has been given that forfeiture will be sought pursuant to paragraph (ii) of subdivision e of this section, a vehicle or other property or equipment seized pursuant to subdivision a of this section shall be released upon payment of a fine or civil penalty imposed for the violation underlying the seizure and the cost of removal and storage as set forth in the rules of the department. Where an action or a proceeding relating to the violation underlying the seizure is pending in a court of competent jurisdiction or an administrative proceeding before the environmental control board, the vehicle or other property or equipment shall be released upon posting of a bond or other form of security sufficient to cover the maximum fine or civil penalty which may be imposed for such violation and the costs of removal and storage.
c. Where a court of competent jurisdiction or the environmental control board makes a finding that the vehicle or other property or equipment has not been used in connection with an act constituting a violation of subdivision a of section 22-204, subdivision a of section 22-206 or subdivision c of section 22-208 of this chapter, the vehicle or other property or equipment shall be released forthwith to the owner or any person authorized by the owner to take possession of such vehicle, property or equipment.
d. Any vehicle or other property or equipment that has not been claimed by the owner within ten business days after mailing by first class mail to such owner of notice of a determination by a court of competent jurisdiction or by the environmental control board that there has been no violation or that the vehicle or other property or equipment was not used in connection with a violation of subdivision a of section 22-204, subdivision a of section 22-206 or subdivision c of section 22-208 of this chapter shall be deemed by the department to be abandoned. Any vehicle unclaimed under the provisions of this subdivision shall be disposed of by the department pursuant to section twelve hundred twenty-four of the vehicle and traffic law. Property or equipment other than a vehicle shall be disposed of by sale at public auction following notice by publication in the city record describing such property or equipment not less than ten business days prior to such sale. Such notice shall provide that the owner may reclaim such property or equipment until a date that shall be not sooner than ten business days from the date the notice is published.
e. (i) In addition to any other fines, penalties, sanctions or remedies provided for in this chapter, a vehicle or other property or equipment which has been seized pursuant to subdivision a of this section and all rights, title and interest therein shall be subject to forfeiture upon notice and judicial determination thereof if the owner of such vehicle or other property or equipment has been found liable by a court of competent jurisdiction or the environmental control board on one or more prior occasions for using such vehicle or such other property or equipment in connection with an act constituting a violation of subdivision a of section 22-204, subdivision a of section 22-206 or subdivision c of section 22-208 of this chapter.
(ii) A forfeiture proceeding may not be commenced more than ten business days after the receipt of a request by the owner for return of the vehicle, other property or equipment. If a forfeiture proceeding is not commenced within such ten day period, the property shall be returned to the owner upon payment of the fine or civil penalty imposed and the costs of removal and storage. A vehicle or other property or equipment which is the subject of such action shall remain in the custody of the department or other appropriate agency pending the final determination of the forfeiture action.
(iii) Notice of the institution of the forfeiture action shall be served by first class mail on: (a) an owner of a vehicle at the address set forth in the records maintained by the department of motor vehicles, or for vehicles not registered in New York state, in the records maintained by the state of registration; (b) all persons holding a security interest in such vehicle which security interest has been filed with the department of motor vehicles pursuant to the provisions of title ten of the vehicle and traffic law, at the address set forth in the records of such department, or for vehicles not registered in New York state, all persons who hold a security interest in such vehicle which security interest has been filed with such state of registration and which persons are made known by such state to the department at the address provided by such state of registration; and (c) for property and equipment other than a vehicle, by publication in the city record describing such property or equipment and by notice served by first class mail to the address of the person from whom such property or equipment was seized. Where such person is other than the owner of such property or equipment, notice shall be served by first class mail both to such person and to the owner of such property or equipment where such owner is known, or can be reasonable effort, by ascertained or, where such owner is not known or cannot by reasonable effort be ascertained, to the employer of the person from whom the property or other equipment was seized. Notice shall also be served by first class mail to any person who holds a security interest in such property or equipment when the name and address of such person has been provided by the owner of the property or equipment or other person from whom the property or equipment was seized, or is otherwise known or can, by reasonable effort, be ascertained.
(iv) Any owner who receives notice of the institution of a forfeiture action who wishes to claim an interest in the vehicle or other property or equipment subject to forfeiture may assert a claim in such action for the recovery of the vehicle or other property or equipment or satisfaction of the owner's interest in such vehicle or other property or equipment. Any person with a security interest in such vehicle or property or equipment who receives notice of the institution of the forfeiture action who claims an interest in such vehicle or other property or equipment may assert a claim in such action for satisfaction of such person's security interest.
(v) Forfeiture pursuant to this subdivision shall be made subject to the interest of a person who claims an interest in the vehicle or other property or equipment pursuant to paragraph (iv) of this subdivision, where such person establishes that: (a) the use of such vehicle, property or equipment in connection with an act constituting a violation of subdivision a of section 22-204, subdivision a of section 22-206 or subdivision c of section 22-208 of this chapter that was the basis for seizure occurred without the knowledge of such person, or if such person had knowledge of such use, that such person did not consent to such use by failing to do all that could reasonably have been done to prevent such use, and that such person did not knowingly obtain such interest in the vehicle, property or equipment in order to avoid the forfeiture; or (b) that the conduct that was the basis for such seizure was committed by any person other than such person claiming an interest in the vehicle, property or equipment while such vehicle was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States or any state.
(vi) The department, after judicial determination of forfeiture, shall, at its discretion, either: (a) retain such vehicle, property or equipment for the official use of the city; or (b) by public notice of at least five days, sell such forfeited vehicle, property or equipment at public sale. The net proceeds of any such sale shall be paid into the general fund of the city.
(vii) In any forfeiture action commenced pursuant to this subdivision, where the court awards a sum of money to one or more persons in satisfaction of such person's or persons' interest in the forfeited vehicle, property or equipment, the total amount awarded to satisfy such interest or interests shall not exceed the amount of the net proceeds of the sale of the forfeited vehicle, property or equipment after deduction of the lawful expenses incurred by the city, including the reasonable costs of removal and storage between the time of seizure and the date of sale.
(viii) For purposes of this section, the term "owner" of a vehicle shall mean an owner as defined in section one hundred twenty-eight and in subdivision three of section three hundred eight of the vehicle and traffic law. The term "owner" of other property or equipment subject to seizure or forfeiture pursuant to this section shall mean a person who demonstrates ownership of such property or equipment to the satisfaction of the commissioner.
(ix) For purposes of this section, the term "security interest" in a vehicle shall mean a security interest as defined in subdivision k of section two thousand one hundred one of the vehicle and traffic law. "Security interest" in other property or equipment shall mean an interest reserved or created by agreement and which secures payment or performance of an obligation. The term includes the interest of a lessor under a lease intended as security.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1995/050 and L.L. 1997/028.
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