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(a) Pre-Sealing Hearing. The special hearing will be presided over by a Hearing Officer who has all of the powers and duties in Subchapter C of 48 RCNY Chapter 6, except as specifically provided in this section. The Hearing Officer may receive evidence presented by the Petitioner who requested the Board to issue the cease and desist order, any intervenor, and the Respondent.
(b) Motions to Intervene.
(1) A person may intervene as of right in a special hearing if such person may be directly and adversely affected by a cease and desist order of the Board. An order imposing a monetary penalty is not an order directly or adversely affecting any person other than a Respondent.
(2) Such person intervening as of right must file a written application with the Tribunal and serve it upon each party to the proceeding not less than five (5) days before the special hearing. Such written application must set forth in detail the reasons why the person seeks to intervene. When such written application is made by any person, the matter will be assigned to a Hearing Officer for disposition. Within three (3) days of being served with such written application, any party may file a response and any supporting documents with the Tribunal. Such response and documents, if any, must be served upon the applicant and all other parties.
(3) An intervenor as of right will have all the rights of an original party, except that the Hearing Officer may provide that the intervenor will be bound by orders previously entered or evidence previously received and that the intervenor will not raise issues or seek to add parties which might have been raised or added more properly at an earlier stage of the proceeding.
(c) Report. In lieu of a recommended hearing decision, the Hearing Officer will prepare a report summarizing the evidence and arguments and including the Hearing Officer's findings of fact and recommendation as to whether the sealing should proceed and additional penalties should be imposed. The Hearing Officer will promptly file the report with the Board.
(d) Board Order. Upon receipt of the Hearing Officer's report, the Board may adopt, reject or modify the findings and recommendation, and direct such further hearings or issue such further orders to Respondent as are appropriate under the circumstances to assure correction of the violations. In any case in which the Board issues an order requiring the Respondent to take affirmative action, such order may also require the Respondent to file with the Board a report or reports attesting under oath that the Respondent has complied with the order. Failure to file a required report within the time limit set forth in the order may, in the Board's discretion, constitute a violation of the order regardless of whether the Respondent has otherwise complied with the provisions of the order.
(e) Post-Sealing Hearing. At any time after a sealing has taken place, a Respondent may request a special hearing to present evidence as to why the seal should be removed or sealing order modified. The Respondent must make the request by letter addressed to the Board or the Executive Director or his or her designee. A special post-sealing hearing will then be scheduled and presided over by a Hearing Officer and conducted in accordance with the provisions of subparagraphs (a), (b) and (c) of this section.
(Added City Record 7/8/2016, eff. 8/7/2016)
If it appears that remediation undertaken by a Respondent cannot proceed or its effectiveness cannot be tested while a seal remains in place, the Respondent may, by written application addressed to the Executive Director or his or her designee, request that a seal be temporarily removed or stayed for a limited period. The Executive Director or his or her designee may authorize a temporary unsealing or stay of sealing for the above specified reasons for such limited period and subject to such conditions as the Executive Director or his or her designee deems appropriate.
(Added City Record 7/8/2016, eff. 8/7/2016)
When the Board has issued an emergency cease and desist order, without hearing, due to an imminent peril to public health or safety, pursuant to Administrative Code §§ 24-178(f), 24-346(a) and (e) or 24-523(a) and (b), any person affected by such emergency order may, by written notice to the Board, request a hearing or an accelerated hearing in accordance with those provisions. The hearing held pursuant to the request will be held by the Board and not referred to a Hearing Officer. The hearing will otherwise be conducted in accordance with the relevant provisions of law and the applicable Board rules for adjudicatory hearings.
(Added City Record 7/8/2016, eff. 8/7/2016)
Subchapter C: Adjudications – Hearing Procedures [Repealed]
Editor's note: Pursuant to City Record 7/8/2016, effective 8/7/2016, the Office of Administrative Trials and Hearings repealed this subchapter.
Subchapter D: Adjudications – Appeal Procedures [Repealed]
Editor's note: Pursuant to City Record 7/8/2016, effective 8/7/2016, the Office of Administrative Trials and Hearings repealed this subchapter.
Subchapter E: Miscellaneous [Repealed]
Editor's note: Pursuant to City Record 7/8/2016, effective 8/7/2016, the Office of Administrative Trials and Hearings repealed this subchapter.
Subchapter F: Special Hearings and Enforcement Proceedings [Repealed]
Editor's note: Pursuant to City Record 7/8/2016, effective 8/7/2016, the Office of Administrative Trials and Hearings repealed this subchapter.
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