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(a) The board shall be convened by the chairperson or in the chairperson's absence the assistant commissioner of environmental compliance, or at the request of any three members thereof.
(b) If a member of the board has presided over the initial hearing, he or she shall not be disqualified from reviewing the hearing.
(c) Five members of the board, at least two of who shall not be city officials, shall constitute a quorum.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2005/113.
(a) Notice, required by this chapter, shall be given by issuance of a notice of violation.
(b) Whenever the commissioner has reasonable cause to believe that a violation of any provision of this code or any order or regulation promulgated by the commissioner or the board may exist, he or she may cause to have a notice of violation issued and served on:
(1) The person in violation; or
(2) An owner with an equity interest in the device in violation, if any; or
(3) If an owner with an equity interest in the device in violation cannot be located with due diligence, any other owner of said device.
(c) A notice of violation shall:
(1) Specify the section or sections of this code, order, or regulation that such person or device is in violation of; and
(2) Indicate the amount of the civil penalty that such person is subject to; and
(3) Contain a brief statement of the nature of the violation; and
(4) Require a written response that conforms to section 24-260 of this code; and
(5) Require such person or owner of a device, unless a hearing is not required by section 24-257 of this code, to answer the allegations in the notice of violation at a time and place designated either in or with the notice of violation or in a subsequent notice to such person or owner.
(a) A written response in a form prescribed by the board shall be served upon the department and filed with the board within five days of receipt of the notice of violation.
(b) If the allegation in the notice of violation is one for which a hearing is not required by section 24-257 of this code, and is contested, then the respondent must either:
(1) Include a copy of any tunneling permit or certificate that the respondent asserts was issued by the department; or
(2) Deny that such tunneling permit or certificate is required by law.
(c) If any of the allegations in the notice of violation are those for which a hearing is required by section 24-257 of this code, and are contested, the written response shall contain a concise statement of the facts constituting each ground of defense.
(d) If allegations in the notice of violation are admitted the written response of the respondent shall consist of:
(1) A statement that he or she admits all of the material allegations to be true; and
(2) A statement of any attempts subsequent to service of the notice of violation to comply with this code or with the order or regulation.
(e) Failure of the respondent to serve a written response within the time provided shall be deemed to constitute a waiver of his or her right to appear and contest the allegations in the notice.
(a) Any person other than personnel of the department and employees of the city of New York authorized by law to serve summonses for violation of the code may serve upon the department a complaint in a form prescribed by the commissioner alleging that a person has violated a provision of this code set forth in table VI, below, or an order or regulation promulgated under such provision together with evidence of such violation.
TABLE VI
Violation related to section or subdivision and order or regulation thereunder |
24-208 |
24-216 |
24-220 (b) |
24-224 |
24-232, except that the provisions of this section 24-261 shall apply only to violations by persons operating motor vehicles listed in subdivisions one and two of column I, and subdivisions one and two of column II of Table 1. 24-234 24-236 24-237, except that the provisions of this section 24-261 shall apply only to a violation by a person operating a circulation device with a rated capacity in excess of fifty thousand British thermal units per hour or its equivalent. |
24-238 |
24-240 |
24-241 |
24-244 |
24-245 |
(b) A person who has served a complaint pursuant to subdivision (a) of this section may serve upon the person allegedly in violation and upon the board a notice of violation in a form prescribed by the board, if within thirty days from service of such complaint:
(1) The department has failed to serve a notice of violation, pursuant to section 24-259 of this code, for the violation alleged in a complaint pursuant to subdivision (a) of this section; or
(2) The department fails to serve a written notice upon the complainant of its determination that his or her complaint is frivolous or duplicitous.
(c) A person commencing a proceeding before the board pursuant to this section, shall prosecute such proceeding at his or her own expense. The department may intervene in such a proceeding at any time.
(d) In any proceeding brought by the department after receiving a complaint pursuant to subdivision (a) of this section, the board shall award the complainant, out of the proceeds collected, fair and reasonable compensation, which shall not exceed 25 percent of the proceeds collected, for disclosure of information or evidence not in the possession of the department, which leads to the imposition of the civil penalty; provided that for any proceeding brought by the department after receiving a complaint pursuant to subdivision (a) of this section alleging a violation of subdivision (b) of section 24-244, the board shall award the complainant, out of the proceeds collected, compensation in the amount of $5.
(e) In any proceeding brought by a complainant, the board shall award, out of the proceeds collected, 50 percent of any civil penalty as fair and reasonable compensation to such person; provided that for any proceeding brought by a complainant alleging a violation of subdivision (b) of section 24-244, the board shall award, out of the proceeds collected, compensation in the amount of $10 to such person.
(Am. L.L. 2024/016, 1/6/2024, eff. 1/6/2024)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2024/016.
(a) The chairperson of the board shall designate a hearing officer or at least one member of the board to preside over hearings held pursuant to this subchapter. In any hearing in which a quorum of the board is present, such members shall be deemed to be sitting as the board.
(b) All such hearings shall be open to the public.
(c) At the request of any party to such a hearing, the board shall by the issuance of a subpoena compel the attendance of such witnesses and shall require the production of any such books, papers, or other things relating to the matter under investigation if such a request reasonably relates to such hearing.
(d) Any party to a hearing may be represented by counsel, may make oral and written argument and cross-examine witnesses. All testimony taken before the board or the designated hearing officer shall be under oath and shall be recorded. The record shall be open to public inspection, and copies thereof shall be made available to any person upon payment of the actual cost of reproduction.
(a) A respondent shall be in default when the respondent has:
(1) Failed to serve a written response pursuant to section 24-260 of this code; or
(3) Neglected to proceed in a manner ordered by the board.
(b) Within sixty days of a decision and order of the board issued pursuant to paragraph two of subdivision (c) of section 24-266 of this subchapter, the respondent may request the board to grant a stay of such order of the board and schedule a hearing. If the respondent has shown good cause and a meritorious defense, the board may grant such a request and hold a hearing pursuant to section 24-263 of this code. At the conclusion of the hearing, the board may adopt, amend or rescind its decision and order.
(a) At the conclusion of the hearing, the hearing officer or member of the board conducting the hearing shall prepare a decision stating findings of fact and conclusions, as well as reasons for his or her determination on all material issues, and making recommendations as to action which should be taken in the matter.
(b) The hearing officer or member of the board conducting the hearing shall file his or her decision with the board and send copies by mail to the parties. Any party may file exceptions with the board within twenty days after service of such decision. If no exceptions have been filed within the described time, the recommendations of the hearing officer or member of the board conducting the hearing shall automatically become the decision of the board and shall constitute its findings, conclusions and order.
(c) At the conclusion of a hearing conducted by the board, the board shall issue its decision and order. The decision of the board shall conform to the requirements of subdivisions (b) and (c) of section 24-266 of this code.
(a) If any party files exceptions to the decision of the hearing officer or member of the board conducting a hearing within the prescribed time the board shall review the record and issue its decision and order in which it may adopt, modify or reject the findings, conclusions and recommendations of the hearing officer or member of the board who conducted the hearing.
(b) The decision of the board shall contain findings of fact, conclusions of law and reasons for the decision on all material issues raised, and an order either dismissing the allegations of the notice of violation or sustaining them in whole or in part.
(c) The board may exercise one or more of its powers pursuant to section 24-257 of this code, as it deems appropriate if:
(1) The allegations in the notice of violation are sustained in whole or in part;
(2) The respondent is in default under section 24-264 of this code.
(d) The decision and order of the board shall be its final determination. A judicial proceeding must be commenced within two months after the service of such decision and order.
(a) If the respondent fails or refuses to comply with the board's order, or the board otherwise deems it necessary, the corporation counsel for the city of New York, acting in the name of the city, may maintain an action or proceeding in a court of competent jurisdiction to compel compliance with or restrain by injunction the violation of any order of the board.
(b) A civil penalty imposed by the board pursuant to section 24-257 of this code may be collected in an action brought in the name of the city of New York.
(a) Any person who shall knowingly make a false statement or who shall knowingly falsify or allow to be falsified any certification, registration, form, signed statement, application or report required under the provisions of this code or regulation promulgated by the commissioner or the board shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment not to exceed five months, or both.
(b) Any person, other than a corporation, who violates any order of the commissioner or the board or any provision of section 24-245 of this code or who illegally breaks a seal on equipment, upon conviction shall be punished for each offense by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment for not more than thirty days or by both. Any corporation which violates any order of the commissioner or the board or any provision of section 24-245 of this code, or which illegally causes a seal to be broken, upon conviction shall be punished for each offense by a fine of not less than one hundred dollars nor more than two thousand dollars. Every day during which such violation occurs constitutes a separate offense.
(c) Any person, other than a corporation, convicted of willful failure to pay a civil penalty imposed by the board pursuant to section 24-257 of this code shall be punished by a fine of double the amount of the civil penalty imposed by the board, or by imprisonment for not more than sixty days, or by both. Any corporation convicted of a wilful failure to pay a civil penalty imposed by the board pursuant to section 24-257 of this code shall be punished by a fine of double the amount of the civil penalty imposed by the board, but not more than two thousand dollars.
(d) The failure of any person or corporation against whom an action has been brought to collect a civil penalty pursuant to subdivision (b) of section 24-267 of this code, who has been found liable by a court for such civil penalty and who does not pay such penalty after the judgment of such becomes final, shall be deemed guilty of a willful failure to pay a civil penalty.
(e) Any person convicted of violating any of the provisions of this code or any regulation of the board not otherwise provided for by this section shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars for the first offense, or by imprisonment for twenty days, or both; and by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment for not more than thirty days, or both, for a second offense; and by a fine of not less than four hundred dollars nor more than five thousand dollars, or by imprisonment for not more than four months or both for a third or subsequent offense.
(f) Twenty-five percent of any fine that is imposed pursuant to this section may be paid to the person or persons giving information which shall lead to conviction.
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