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(a) A hearing will be presided over by a Hearing Officer, proceed with reasonable expedition and order and, to the extent practicable, not be postponed or adjourned.
(b) Language assistance services at the hearing.
(1) At the beginning of any hearing, the Hearing Officer will advise the Respondent of the availability of language assistance services. In determining whether language assistance services are necessary to assist the Respondent in communicating meaningfully with the Hearing Officer and others at the hearing, the Hearing Officer will consider all relevant factors, including but not limited to the following:
(i) information from Tribunal administrative personnel identifying a Respondent as requiring language assistance services to communicate meaningfully with a Hearing Officer;
(ii) a request by the Respondent for language assistance services; and
(iii) even if language assistance services were not requested by the Respondent, the Hearing Officer's own assessment whether language assistance services are necessary to enable meaningful communication with the Respondent.
If the Respondent requests an interpreter and the Hearing Officer determines that an interpreter is not needed, that determination and the basis for the determination will be made on the record.
(2) When required, language assistance services will be provided at hearings by a professional interpretation service that is made available by the Tribunal. If the professional interpretation service is not available for that language, the Respondent may request the use of another interpreter, in which case the Hearing Officer in his or her discretion may use the Respondent's requested interpreter. In exercising that discretion, the Hearing Officer will take into account all relevant factors, including but not limited to the following:
(i) the apparent skills of the Respondent's requested interpreter;
(ii) whether the Respondent's requested interpreter is a child under the age of eighteen (18);
(iii) minimization of delay in the hearing process;
(iv) maintenance of a clear and usable hearing record; and
(v) whether the Respondent's requested interpreter is a potential witness who may testify at the hearing.
The Hearing Officer's determination and the basis for this determination will be made on the record.
(c) When a party appears on more than one (1) summons on a single hearing day, the Tribunal has the discretion to determine the order in which the summonses will be heard.
(d) Each party has the right to present evidence, to examine and cross-examine witnesses, to make factual or legal arguments and to have other rights essential for due process and a fair and impartial hearing. Witnesses may be excluded from the hearing room, except while they are actually testifying.
(e) Oaths. All persons giving testimony as witnesses at a hearing must be placed under oath or affirmation.
(f) All adjudicatory hearings will proceed in the following order, subject to modification by the Hearing Officer:
(1) Presentation and argument of motions preliminary to a hearing on the merits;
(2) Petitioner's opening statement, if any;
(3) Respondent's opening statement, if any;
(4) Petitioner's case in chief;
(5) Respondent's case in chief;
(6) Petitioner's case in rebuttal;
(7) Respondent's case in rebuttal;
(8) Respondent's closing argument;
(9) Petitioner's closing argument.
(g) A record will be made of all summonses filed, proceedings held, written evidence admitted and rulings rendered, and such record will be kept in the regular course of business for a period of time in accordance with applicable laws and regulations. Hearings will be mechanically, electronically or otherwise recorded by the Tribunal under the supervision of the Hearing Officer, and the original recording will be part of the record and will constitute the sole official record of the hearing. No other recording or photograph of the hearing may be made without prior written permission of the Tribunal. A copy of the recording will be provided upon request to the Tribunal. The Tribunal may charge a reasonable fee in accordance with Article 6 of the New York State Public Officers Law.
(h) Unless permitted or ordered by the Hearing Officer, parties are prohibited from submitting additional material or argument after the hearing has been completed.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016)
(a) Burden of Proof. The Petitioner has the burden of proving the factual allegations contained in the summons by a preponderance of the evidence. The Respondent has the burden of proving an affirmative defense, if any, by a preponderance of the evidence.
(b) Admissibility of Summons. If the summons is sworn to under oath or affirmed under penalty of perjury, the summons will be admitted as prima facie evidence of the facts stated therein. The summons may include the report of the inspector, public health sanitarian or other person who conducted the inspection or investigation that resulted in the summons. When such report is served with the summons, such report will also be prima facie evidence of the factual allegations contained in the report.
(c) Admissibility of Evidence. Relevant and reliable evidence may be admitted without regard to technical or formal rules or laws of evidence applicable in the courts of the State of New York. Irrelevant, immaterial, unreliable or unduly repetitious evidence will be excluded. Immaterial or irrelevant parts of an admissible document must be segregated and excluded to the extent practicable.
(1) Admissibility of Immigration Status. A party, representative or attorney shall not offer information concerning a person's actual or perceived immigration status unless and until the Hearing Officer reviews such information privately and determines that such information is relevant and not introduced solely to subject that person to harassment, intimidation, physical danger, or other harms in connection with the person's immigration status. Notwithstanding any other provision of this subdivision, a person may voluntarily introduce or authorize the introduction of information about his or her own immigration status.
(2) Any party, representative or attorney who offers information concerning the immigration status of another person not in compliance with paragraph one of this subdivision may be subject to sanctions pursuant to 48 RCNY § 6-25 and such information may be struck from the record.
(d) Types of Evidence. Evidence at a hearing may include, but is not limited to, witness testimony, documents and objects. Documents may include, but are not limited to, affidavits or affirmations, business records or government records, photographs and other documents.
(e) Official Notice. Official notice may be taken of all facts of which judicial notice may be taken and other facts within the specialized knowledge and experience of the Tribunal or the Hearing Officer. Opportunity to disprove such noticed fact will be granted to any party making a timely motion.
(f) Objections. Objections to evidence must be timely and must briefly state the grounds relied upon. Rulings on all objections must appear on the record.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 4/23/2021, eff. 5/23/2021)
Hearing Officers may:
(a) Administer oaths and affirmations, examine witnesses, rule upon offers of proof or other motions and requests, admit or exclude evidence, grant adjournments and continuances, and oversee and regulate other matters relating to the conduct of a hearing;
(b) Upon request of a party, issue subpoenas or adjourn a hearing for the appearance of individuals or the production of documents or other types of information when the Hearing Officer determines that necessary and material evidence will result;
(c) Bar from participation in a hearing any person, including a party, representative or attorney, witness or observer who engages in disorderly, disruptive or obstructionist conduct that disrupts or interrupts the proceedings of the Tribunal, and continue the hearing without that person's presence;
(d) Carry out adjudicatory powers of:
(i) the hearing examiner set forth in of the New York City Administrative Code and associated rules and regulations and the New York City Health Code as codified within Title 24 of the Rules of the City of New York, and
(ii) an administrative law judge set forth in of the New York City Administrative Code;
(e) Allow an amendment to a summons only upon a motion at any time if:
(1) the subject of the amendment is reasonably within the scope of the original summons;
(2) such amendment does not allege any additional violations based on an act not specified in the original summons;
(3) such amendment does not allege an act that occurred after the original summons was served; and
(4) such amendment does not affect the Respondent's right to have adequate notice of the allegations made against him or her.
(f) Request further evidence to be submitted by the Petitioner or Respondent;
(g) Make final or recommended decisions pursuant to applicable law, rule or regulation; and
(h) Take any other action authorized by applicable law, rule or regulation, or that is delegated by the Chief Administrative Law Judge.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016)
(a) At the request of either party during a hearing, a Hearing Officer may adjourn the hearing upon a showing of good cause as determined by the Hearing Officer in his or her discretion.
(b) In deciding whether there is good cause for an adjournment, the Hearing Officer will consider:
(1) Whether granting the adjournment is necessary for the party requesting the adjournment to effectively present the case;
(2) Whether granting the adjournment is unfair to the other party;
(3) Whether granting the adjournment will cause inconvenience to any witness;
(4) The age of the case and the number of adjournments previously granted;
(5) Whether the party requesting the adjournment had a reasonable opportunity to prepare for the scheduled hearing;
(6) Whether the need for the adjournment is due to facts that are beyond the requesting party's control;
(7) The balance of the need for efficient and expeditious adjudication of the case and the need for full and fair consideration of the issues relevant to the case; and
(8) Any other fact that the Hearing Officer considers to be relevant to the request for an adjournment.
(c) Once a hearing has been adjourned, neither party may request a reschedule pursuant to 48 RCNY § 6-05. A denial of an adjournment request is not subject to interim review or appeal.
(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)
(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)
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