§ 1-19 Presumption of Continued Unlicensed Activity.

   (a)   Unless otherwise specified in the notice, if the Department, on notice, charges a business or individual with engaging in activity without a license required under Chapter 2 of Title 20 of the New York City Administrative Code or under provisions of state law enforced by the Department, there shall be a rebuttable presumption that the unlicensed activity continued every day, without interruption, from the date specified by the Department in the notice as the first date of unlicensed activity through the hearing date.

   (b)   The first date of unlicensed activity specified by the Department in the notice may be the date of an inspection at which unlicensed activity is identified, the date on which a previously-held license expired, was suspended or revoked, or became void by operation of law, or any other date on which unlicensed activity first occurred, such as the date the business or individual entered into a contract to conduct business for which a license was required or the first date a business or individual advertised or offered services for which a license was required.

   (c)   Regardless of the date specified by the Department in the notice, if the Department presents at the hearing a copy of a decision or order from a prior proceeding finding that the business or individual engaged in the same unlicensed activity, or a copy of a settlement from a prior proceeding resolving a charge of the same unlicensed activity, there shall be a rebuttable presumption that the unlicensed activity continued every day, without interruption, from the date of the decision, order or settlement through the date of the hearing, unless the decision, order or settlement specifically provides otherwise.

   (d)   Regardless of the date specified by the Department in the notice, if the Department presents at the hearing a copy of a decision or order from a prior proceeding revoking or suspending the license to engage in the same activity forming the basis of the charge of unlicensed activity, or a copy of a settlement from a prior proceeding that includes such license revocation or suspension, there shall be a rebuttable presumption that the unlicensed activity continued every day, without interruption, from the date following the decision, order or settlement through the date of the hearing.

   (e)   A party may present credible evidence at the hearing to rebut the presumption of continued unlicensed activity, such as written proof that the party obtained a license; receipts or other documentation indicating that merchandise was returned to distributors; written termination of leases or agreements; or photographs demonstrating the discontinuance of the unlicensed activity.

(Added City Record 9/18/2015, eff. 10/18/2015; amended City Record 2/24/2020, eff. 3/25/2020)

§ 1-20 Non-Payment of Civil Penalties.

   (a)   The Commissioner may deny a new or renewal application for any license, permit or registration, and may revoke, suspend, cancel, or terminate any license, permit or registration, if (i) the applicant, licensee, permittee or registrant has failed to timely pay civil penalties imposed by a tribunal of the New York City Office of Administrative Trials and Hearings (OATH), and (ii) an agency has provided the Commissioner with the following information: the name, address, Department license number and license category, where applicable, and information sufficient to determine the delinquency and monetary amount of the outstanding civil penalties owed by the applicant, licensee, permittee or registrant.

   (b)   In determining whether to exercise the power granted by paragraph (a) of this section, the Commissioner shall consider the amount of time that has passed since the applicant, licensee, permittee or registrant failed to satisfy a final judgment, order or decision imposing civil penalties from OATH, the amount of the outstanding civil penalties, whether the applicant, licensee, permittee or registrant has committed a series of violations, and any such other matters as justice may require, as follows:

      1.   New applications for licenses, permits or registrations may be denied where there is an outstanding final judgment, order, or decision of any amount older than thirty (30) days.

      2.   Licenses, permits or registrations may be suspended, and renewal applications denied, where outstanding final judgments, orders, or decisions are:

         A.   Older than sixty (60) days; and

         B.   Five hundred dollars ($500) or more.

      3.   Licenses, permits or registrations may be revoked or cancelled where outstanding final judgments, orders, or decisions are:

         A.   Older than ninety (90) days; and

         B.   One thousand dollars ($1,000) or more; and

         C.   The applicant, licensee, permittee or registrant violated any provision the enforcement of which is within the jurisdiction of the Department in the previous five (5) years.

   (c)   If the applicant, licensee, permittee or registrant breaches the terms of a settlement agreement or payment plan reached with the City for satisfaction of a final judgment, order or decision imposing civil penalties, time will be calculated from the date of the breach or first missed payment, unless otherwise set forth in the agreement.

   (d)   For purposes of this subsection, a judgment, order or decision imposing civil penalties from OATH is considered "final" when:

      1.   An appeal or motion to vacate challenging the judgment, order, or decision has been resolved;

      2.   The entity or legal representative against whom the judgment, order or decision was imposed fails to appeal within the time allotted by OATH; or

      3.   The entity or legal representative against whom the judgment, order or decision was entered on default fails to move to vacate the judgment, order or decision within sixty (60) of the date entered.

   (e)   The Department reserves the right to take any action on an application or license for any monies owed to the Department regardless of the criteria provided in this section.

(Added City Record 1/30/2019, eff. 3/1/2019; amended City Record 2/24/2020, eff. 3/25/2020)

§ 1-21 Injurious Conduct by Licensees.

   (a)   No person shall assault, menace, unlawfully imprison, or harass, or attempt to assault, menace, unlawfully imprison, or harass, any employee of the Department engaged in carrying out any duty for the Department. No person shall intentionally damage any property of the Department. A licensee found in violation of this subdivision, or a licensee whose employees or agents are found in violation of this subdivision, is subject to suspension and/or revocation of its licenses as provided for in this section.

   (b)   In addition to any of the powers that may be exercised by the commissioner pursuant to any other provision of law or rule, upon the issuance of a summons alleging a violation of subdivision (a) by a licensee, or employee or agent of a licensee, the commissioner may immediately suspend any license held by the licensee, subject to a prompt post-suspension hearing to be held no more than 7 business days after the commencement of the suspension. In a summons alleging a violation of subdivision (a), the Department may request suspension or revocation of any license issued by the Department and held by the licensee, in addition to alleging any other violations.

   (c)   Post-suspension hearing and trial. 

      (1)   At the post-suspension hearing prescribed by subdivision (b), continued suspension of a license must be ordered if the Department is found to have alleged facts which, if true, are sufficient to establish a violation of subdivision (a) of this section and the Department establishes by a preponderance of the evidence that continued licensure poses a risk to public safety or the Department's ability to perform enforcement. Suspension ordered pursuant to this subdivision must be continued until a final determination is issued pursuant to paragraph (2) of this subdivision.

      (2)   Following the post-suspension hearing prescribed by subdivision (b) of this section, a trial will be held to adjudicate all violations alleged in the summons as well as any continued suspension or revocation requested by the Department. At such trial, the Department must prove by a preponderance of the evidence that the licensee's continued licensure poses a risk to safety or the Department's ability to perform enforcement. Such trial must commence within 45 days of the decision rendered in the post-suspension hearing.

   (d)   As used in this section, the following terms shall be defined as follows:

      (1)   "Assault" shall mean to intentionally or recklessly cause physical injury to another person.

      (2)   "Menace" shall mean to intentionally place another person in reasonable fear of physical injury.

      (3)   "Unlawfully imprison" shall mean to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his or her liberty by moving him or her from one place to another, or by confining him or her either in the place where the restriction commences or in a place to which he or she has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined "without consent" when such is accomplished by physical force, intimidation or deception.

      (4)   "Harass" shall mean to intentionally and repeatedly harass another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury.

      (5)   "Person" shall have the same meaning as found in § 20-102 of Title 20 of the New York City Administrative Code.

(Added City Record 2/15/2019, eff. 3/17/2019; amended City Record 4/7/2023, eff. 5/7/2023)