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(a) Upon request of either party, a Hearing Officer may grant an adjournment for the testimony of an Inspector if the Hearing Officer finds that the Inspector's testimony is likely to be necessary to a fair hearing on the violation(s) charged and/or the defense(s) asserted.
(b) If a Hearing Officer has adjourned a hearing solely for the purpose of obtaining the Inspector's testimony, and the Respondent timely appears on the adjourned hearing date but the Inspector fails timely to appear, the hearing shall not be further adjourned solely to obtain the testimony of such Inspector, unless the Respondent consents to the second adjournment or the Hearing Officer finds that extraordinary circumstances warrant the second adjournment. "Extraordinary circumstances" are circumstances that could not have been reasonably foreseen by the Petitioner.
(c) A Hearing Officer may not adjourn a hearing on more than two (2) occasions for the appearance of the Inspector.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 12/5/2018, eff. 1/4/2019)
(b) An attorney or representative appearing at the Tribunal must provide staffing sufficient to ensure completion of his or her hearings. The failure of a representative or attorney to provide sufficient staffing may be considered misconduct under 48 RCNY § 6-25. The Tribunal may consider the following factors in determining whether sufficient staffing has been provided:
(1) the number of cases the representative or attorney had scheduled on the hearing date;
(2) the number of representatives or attorneys sent to handle the cases;
(3) the timeliness of the arrival of the representatives or attorneys;
(4) the timeliness of the arrival of any witnesses; and
(5) any unforeseeable or extraordinary circumstances.
(c) When any attorney or representative appears on more than one (1) summons on a single hearing day, the Tribunal has the discretion to determine the order in which such summonses will be heard.
(d) In order to appear on behalf of a Respondent:
(1) A registered representative or attorney must provide a signed authorization to appear form prior to the hearing; and
(2) The registered representative or attorney must keep and maintain the authorization to appear form with the original signature of the person authorizing the representation, produce it to the Tribunal upon request, and include a copy of it with all e-mail correspondence to the Tribunal relating to that representation (including but not limited to requests for telephone or online hearings). Failure to produce this form with the original signature for an in-person hearing creates a rebuttable presumption that the registered representative or attorney is not authorized to represent the Respondent. Failure to include a copy of this form with all e-mail correspondence to the Tribunal relating to the representation shall result in rejection of the request for a hearing.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 8/11/2022, eff. 9/10/2022)
(a) Decisions. After a hearing, the Hearing Officer who presided over the hearing will promptly write a decision sustaining or dismissing each charge in the 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 48 RCNY § 6-19.
(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 Section 1049-a of the Charter and provisions of the New York City 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 48 RCNY § 6-19, the Hearing Officer's recommended decision will be automatically adopted by the Board and will constitute the Board's final decision in the matter. 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.
(5) For all summonses issued by the Business Integrity Commission pertaining to violations of trade waste laws under title 16-A of the New York City Administrative Code, and of any rules promulgated thereunder, the Hearing Officer will issue a recommended decision and order, which the Business Integrity Commission 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.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 8/22/2016, eff. 8/22/2016; amended City Record 3/28/2023, eff. 4/27/2023)
A copy of the decision, other than a default decision mailed or otherwise provided in accordance with 48 RCNY § 6-20, will be served immediately on the Respondent or on the Respondent's authorized representative, either personally or by mail. Any fines, penalties or restitution imposed must be paid within thirty (30) days of the date of the decision, or thirty-five (35) days if the decision was mailed, unless the agency responsible for collecting payment of the fines and penalties imposed enters into a payment plan with the Respondent.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016)
Subchapter D: Appeals
(a) Filing an appeal.
(1) A party may appeal a decision of a Hearing Officer in whole or in part. An appeal will be considered by the Tribunal only upon timely completion of the following requirements:
(i) The party seeking to appeal the decision of a Hearing Officer must file the appeal with the Tribunal within thirty (30) days of the date of the Hearing Officer's decision, or within thirty-five (35) days if the decision was mailed, and the filing must contain proof that the appealing party served a copy of the appeal on the nonappealing party;
(ii) The appeal must be in writing and contain a concise statement of the issues, which must include specific objections to the findings of fact and conclusions of law in the Hearing Officer's decision, and the points of law and facts that support each objection. The appeal may be on a form prescribed by the Tribunal.
(iii) Where a respondent appeals, that respondent must indicate in writing that payment of any fines, penalties or restitution imposed by the decision has been made in full, unless:
(A) Respondent is granted a waiver of prior payment of fines, penalties or restitution due to financial hardship, as provided in subdivision (b) of this section;
(B) Respondent received a waiver of prior payment of fines or penalties as otherwise provided in law, rules or regulations;
(C) Respondent opted for community service in lieu of a monetary penalty at the hearing; or
(D) The agency responsible for collecting payment of the fines or penalties imposed enters into a payment plan with the Respondent prior to or at the time of the filing of the appeal.
(2) A party may not appeal a decision rendered on default, a denial of a request for new hearing after default (motion to vacate a default), or a plea admitting the violations charged.
(b) Financial hardship. An application to the Tribunal for a waiver of prior payment due to financial hardship must be made before or at the time of the filing of the appeal and must be supported by evidence of financial hardship. The Chief Administrative Law Judge or his or her designee has sole discretion to grant or deny a waiver due to financial hardship. Application for a waiver does not extend the time to appeal.
(c) Responding to an appeal. Except as provided in 48 RCNY § 5-04, the non-appealing party may file a response to the appeal within thirty (30) days of being served with the appeal, or thirty-five (35) days if served by mail. The response must be in writing, served on the appealing party, and filed with the Tribunal with proof of such service within the time allotted. The response may be on a form prescribed by the Tribunal.
(d) Requests for Extensions of time.
(1) A party who requests an extension of time to file an appeal or respond to an appeal will receive one automatic extension of thirty (30) days from the date the Appeals Unit grants the request. Any further requests for an extension will be granted for good cause shown.
(2) All parties are entitled to request a copy of the hearing recording from the Appeals Unit. Any requests for hearing recordings will not further extend the party's time to appeal as set forth in Subsection (1) of this subdivision.
(3) Requests under Subsection (1) of this subdivision must be made in writing within the time allotted to file an appeal or a response, served on all parties, and timely filed with the Tribunal with proof of service. Requests for an extension may be on a form prescribed by the Tribunal.
(4) Unless one of the exceptions in Subdivision (a)(1)(iii) of this section applies, a request for an extension of time to file an appeal does not extend the time by which the Respondent must pay the penalty pursuant to 48 RCNY § 6-18.
(e) Further filings on an appeal with the Tribunal by either party will not be considered unless requested by the Appeals Unit.
(f) Review of an Appeal.
(1) Appeals decisions are made upon the record of the hearing. The record of the hearing includes all items enumerated in 48 RCNY § 6-11(g).
(2) The Appeals Unit will only consider evidence that was offered to the Hearing Officer at the hearing; provided however, upon good cause shown, the Appeals Unit may consider dispositive government records, such as a death certificate or deed, that establish a material fact or defense.
(3) In all cases other than those subject to 48 RCNY § 5-04, the Tribunal will decide an appeal even if there is no hearing recording.
(g) Appeals Decision.
(1) When an appeal is filed, the Appeals Unit will determine whether the facts contained in the findings of the Hearing Officer are supported by a preponderance of the evidence in the record, and whether the determinations of the Hearing Officer, as well as the penalties imposed, are supported by law. Except as provided in 48 RCNY §§ 3-15, 5-04 and 5-05, the Appeals Unit has the power to affirm, reverse, remand or modify the decision appealed from.
(2) Except as provided in 48 RCNY §§ 3-15, 5-04 and 5-05, the Appeals Unit will promptly issue a written decision. Such decision is the final determination of the Tribunal, and judicial review of such decision may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules. A copy of the decision will be delivered to the Petitioner and served on the Respondent by mail, stating the grounds upon which the decision is based. Where appropriate, the decision will order the repayment to the Respondent of any penalty that has been paid.
(3) For summonses returnable to the Tribunal as authorized by the Board pursuant to Section 1049-a of the Charter and provisions of the New York City Administrative Code, any rules and regulations made thereunder, or provisions of New York State law, any decision of the Appeals Unit is a recommended decision to the Board. The Board or a panel consisting of members thereof will review the recommended decision and issue a final determination pursuant to 48 RCNY § 3-15.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 12/5/2018, eff. 1/4/2019; amended City Record 6/18/2020, eff. 7/18/2020)
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