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(a) The Department may seize, embargo or condemn any food, drug, device, cosmetic, article or thing that it determines
(1) is unfit for human consumption or use;
(2) is in a condition, kind, weight, quality or strength prohibited by this Code or other applicable law;
(3) is not labeled as required by this Code or other applicable law;
(4) contains false or misleading labeling;
(5) is adulterated or misbranded; or
(6) constitutes a danger or nuisance, or is otherwise prejudicial to the public health.
(b) The Department may destroy, render harmless, or otherwise dispose of all seized, embargoed or condemned material without compensation and, in its discretion, at the expense of the owner or person in control thereof, or may direct such owner or person to do so. Embargoed, seized and condemned material which is hazardous shall be disposed of in accordance with applicable law.
(c) When the Department determines that embargoed material consists in part of materials which are not in violation of the Code and which may be reasonably salvaged, or that embargoed materials or any part thereof can be reasonably brought into compliance with the Code, the Department shall permit the owner or person in control of such embargoed material, unless the public health otherwise requires, to separate the salvageable portions or to bring such materials into compliance with the Code at the place of embargo or seizure, or other place acceptable to the Department, in a manner directed by the Department. When seized material is disposed of by the Department otherwise than by destruction, it may be released to the owner or person in control if it may be rendered harmless.
(d) All activities carried on pursuant to this section shall be done in a manner consistent with the maintenance of the public health, giving due regard to the property rights of the owner or person in control of the affected material.
(e) Except where the Department determines that immediate action is required to protect the public health, the Department shall not seize, embargo, condemn, destroy, render harmless or otherwise dispose of any material pursuant to this section until the owner or person in control is notified by any effective means of communication and is given opportunity to be heard by such personnel of the Department as the Commissioner may designate. No person shall fail to comply with any order or subpoena of the Commissioner requiring disclosure of information concerning the sources or recipients of the embargoed or seized material.
(a) No person shall violate an order of the Board, Commissioner or Department.
(b) Service of any order of the Commissioner or Department shall be deemed legally sufficient if delivered personally or if mailed by ordinary first class, certified or registered mail, express or overnight mail, through the United States Postal Service or through any commercial expedited mail or parcel delivery service, in no particular order of priority, upon any person, officer, department or employee referred to in § 17-141 of the Administrative Code. The Department shall maintain records attesting to the manner of service used and the person or entity served in each instance. Service of any order issued pursuant to subdivision (d) of 24 RCNY Health Code § 3.01 shall be deemed legally sufficient if served in accordance with the provisions specified therein.
No person shall do or assist in any act which is or may be detrimental to the public health or to the life or health of any individual unless the act is authorized by law. No person shall fail to do any reasonable act or take any necessary precaution to protect human life and health.
No person shall commit or maintain a nuisance as defined in § 17-142 of the Administrative Code, and no person shall allow such a nuisance to exist or to be created in respect of any matter, thing, chattel or premises which he or she owns or controls.
(a) Except as provided in subdivisions (b), (c), (d) and (e) herein, any person who is determined to have violated this Code or any other applicable law or regulation that the Department is authorized to enforce, shall, unless otherwise specified in such other law or regulation, be subject to a fine, penalty and forfeiture of not less than two hundred and not more than two thousand dollars for each violation of a provision of this Code or any other such applicable law or regulation. Each such violation may be treated as a separate and distinct offense, and in the case of a continuing violation, each day's continuance thereof may be treated as a separate and distinct offense.
(b) Any person who is determined to have conducted, carried on, or in any way engaged in an activity without a permit, license, registration, or other authorization required by this Code shall be subject to a fine, penalty and forfeiture of not less than one thousand and not more than two thousand dollars.
(c) Where a person fails to appear in a proceeding brought to enforce this Code, the penalties imposed for each sustained violation shall be double the amount that would otherwise be assessed by the hearing examiner, but shall not exceed the maximum penalty specified in subdivision (a), (b) or (d) of this section.
(d) The penalty provided for in subdivision (a) of this section may be increased to an amount not to exceed five thousand dollars for a subsequent violation if the person committed the same violation within twelve months of the initial violation for which a penalty was assessed, pursuant to subdivisions (a) or (c) of this section and the violation was a serious threat to the health of an individual or individuals.
(e) The penalty provided for in subdivision (a) of this section may be increased to an amount not to exceed ten thousand dollars if the violation directly results in serious physical harm to any person.
(Amended City Record 9/20/2017, eff. 10/10/2017)
(a) Administrative Tribunal. The Administrative Tribunal established by the Board of Health pursuant to Section 558 of the Charter is hereby continued. It shall be operated by and within the City's Office of Administrative Trials and Hearings and known as the Health Tribunal at OATH.
(b) Proceedings at the Health Tribunal at OATH and the Environmental Control Board. Where the Department seeks a fine or monetary penalty for a violation of this Code or any other State or local law or regulation enforced by the Department, it shall bring a proceeding at either the Health Tribunal at OATH or at the Environmental Control Board, and such proceedings shall be governed by the procedures of such Tribunal or Board, as the case may be.
(c) Service of notices of violations returnable to the Environmental Control Board.
(1) Personal service. Notices of violation returnable to the Environmental Control Board may be served in person upon (i) the person alleged to have committed the violation, (ii) the permittee or registrant, (iii) the person who was required to hold the permit or to register, (iv) a member of the partnership or other group concerned, (v) an officer of the corporation, (vi) a member of a limited liability company, (vii) a management or general agent, or (viii) any other person of suitable age and discretion as may be appropriate, depending on the organization or character of the person, business, or institution charged.
(2) Service by mail. Notices of violation returnable to the Environmental Control Board may be served by mail deposited with the U.S. Postal Service, or any other mailing service to any such person at the address of the premises that is the subject of the NOV or, as may be appropriate, at the residence or business address of (i) the alleged violator, (ii) the individual who is listed as the permittee or applicant in the permit issued by the Board or the Commissioner or in the application for a permit, or (iii) the registrant listed in the registration form. In the case of service by mail, documentation of mailing is sufficient proof of service of the notice of violation.
(d) Decisions. The decisions of the Environmental Control Board shall be final; the decisions of the Health Tribunal at Oath shall be final, except in the case of any appeal from an adjudication of a violation of Article 13-E of the Public Health Law.
(e) Appeals pursuant to Article 13-E of the Public Health Law. Where there is an appeal from an adjudication of a violation of Article 13-E of the Public Health Law, the Health Tribunal at OATH shall, pursuant to the applicable provision of the rules of OATH governing such Tribunal, issue a recommended decision to the Commissioner for him or her to review. Within thirty (30) days of the issuance of the recommendation, the respondent may submit to the Department a written argument why the decision should or should not be followed by mailing by certified or registered mail, emailing or delivering by hand a copy of the argument to the General Counsel of the Department. After the Department has received the respondent's argument or after forty-five (45) days have passed from when the Tribunal issued its recommended decision, whichever time is shorter, the Commissioner shall issue a written decision affirming, reversing or modifying the recommended decision, or remanding the appeal back to the Health Tribunal at OATH for further proceedings. The Commissioner's decision shall be served on the respondent by certified or registered mail. Where appropriate, the Commissioner's decision shall order the Tribunal to repay the respondent any penalty that has been paid. Except when the Commissioner remands an appeal to the Health Tribunal at OATH for future proceedings, the Commissioner's decision shall constitute a final agency determination.
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