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(a) OATH shall issue a recommended decision in the following cases:
(1) all proceedings heard by the adjudicatory body authorized to conduct trials at OATH pursuant to 48 RCNY Chapter 1; and
(2) all violations of the following statutes and of rules or regulations promulgated pursuant to such statutes: Article 13-F of the New York State Public Health Law; 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.
(b) Upon issuance of OATH’s recommended decision in the matter, the Commissioner or the Commissioner’s authorized designee may adopt, reverse, or modify that recommended decision. Where the Commissioner or the Commissioner’s authorized designee determines that the record in the underlying proceeding has not, in whole or in part, been fully developed, he or she may send the case or claim back for development of a complete record. If the Commissioner or Commissioner’s authorized designee sends back a case or claim to OATH, OATH shall issue a recommended decision at the conclusion of the additional proceedings.
(c) For all cases requiring a recommended decision pursuant to subdivision a of this section, the petition or summons must include a statement notifying the respondent that OATH will issue a recommended decision that the Commissioner or the Commissioner’s authorized designee may adopt, reverse, modify, or send back to OATH in whole or in part for further proceedings.
(d) Within thirty (30) days of the issuance of the recommended decision, any party to the proceeding may submit to the Commissioner by regular mail, email, or delivery to the Department at its main office, a written argument setting forth the reasons why the Commissioner should adopt, reverse, or modify the decision, or send the decision, in whole or in part, back to OATH for additional proceedings. The Commissioner may prescribe one or more forms to be used for submission of such argument, which may include a specific email and office address. The Commissioner or the Commissioner’s authorized designee will consider any challenge made by any party provided that the party timely made its objection known to OATH and that the grounds for such challenge are limited to those set forth to OATH.
(e) Not less than sixty (60) days after the issuance of the recommended decision, the Commissioner or the Commissioner's authorized designee will issue a written decision affirming, reversing or modifying the recommended decision, or remanding the matter back to OATH for further proceedings. Except as provided in subdivision f of this section, or with respect to written decisions that send back any part of a matter to OATH for additional proceedings, the Commissioner's decision adopting, reversing, or modifying the recommended decision shall constitute a final agency determination. The written decision from the Commissioner or the Commissioner’s authorized designee will be based on a review of the recommended decision and may consider the trial record from OATH, written arguments submitted to the Department pursuant to subdivision d of this section, any motion papers or other written submissions filed at OATH, and any other OATH decisions bearing on the merits of the case.
(f) If the Commissioner or the Commissioner's authorized designee adopts a recommended decision issued by OATH for a finding of default, and thereafter OATH finds sufficient grounds to vacate the default, the default and the Commissioner's original decision shall be vacated and a new hearing shall be allowed on all of the charges in the original notice of violation. The recommended decision resulting from such hearing will be subject to the provisions of this section.
(g) Whenever the interests of justice so require, the Commissioner or the Commissioner’s authorized designee may reopen, vacate, or modify any final determination, provided that such action may only be taken prior to the commencement of a judicial proceeding to review such determination. Notwithstanding the preceding sentence of this subdivision, after the commencement of a judicial proceeding to review such determination, the Commissioner or the Commissioner’s authorized designee may reopen, vacate, or modify any final determination upon the consent of the parties or judicial order.
(Added City Record 8/22/2016, eff. 8/22/2016; amended City Record 2/10/2021, eff. 3/12/2021)