§ 6516 — Civil enforcement proceedings and civil penalties

§ 6516. Civil enforcement proceedings and civil penalties. 1. Issuance\nof cease and desist order. Whenever the department has reasonable cause\nto believe that any person has violated any provision of section\nsixty-five hundred twelve or sixty-five hundred thirteen of this\narticle, the department may issue and serve upon such person a notice to\ncease and desist from such violation. Such cease and desist order shall\nbe served personally by the department. If personal service can not be\nmade after due diligence and such fact is certified under oath, a copy\nof the order shall be made by certified mail, return receipt requested,\nto the person's last known address by the department.\n 2. Contents of cease and desist order. The cease and desist order\nshall be in writing and shall describe with particularity the nature of\nthe violation, including a reference of the specific provision or\nprovisions of law alleged to have been violated and an order to the\nrespondent to cease any unlawful activity. The cease and desist order\nshall advise the respondent (a) of the right to contest the order by\nrequesting a hearing within thirty days of the service of the cease and\ndesist order before a hearing officer designated by the department (b)\nof the right to request a stay of the cease and desist order at the time\na hearing is requested and (c) shall set forth the respondent's rights\nat such a hearing pursuant to subdivision five of this section.\n 3. Civil penalties. Civil penalties up to five thousand dollars may be\nimposed for each violation and the respondent may be ordered to make\nrestitution to any person who has an interest in any money or property,\neither real or personal, acquired by the respondent as a result of a\nviolation. Whenever the department concludes that civil penalties and/or\nrestitution may be warranted because of the egregiousness of the\nunlawful activity, it may serve, along with the cease and desist order,\na notice of a hearing on the allegations of unlawful activity and the\ndepartment's intention to order the respondent to make restitution\nand/or impose a civil penalty. The notice should specify the civil\npenalty sought for each violation.\n 4. Request for hearing. If the respondent to a cease and desist order\ncontests the cease and desist order, the respondent shall request a\nhearing conducted by the department within thirty days of the receipt of\nthe cease and desist order. Such a hearing shall be scheduled, and the\nrequesting party notified of the date, within fifteen days of the\nreceipt of the request for a hearing. If the respondent requests a stay\nof the cease and desist order, the hearing officer shall determine\nwhether the cease and desist order should be stayed in whole or in part\nwithin five working days of the request for a stay. The respondent may\nfile a written answer to the cease and desist order prior to the\nhearing. A stenographic record of the hearing shall be made.\n 5. Conduct of hearing. The evidence in support of the cease and desist\norder shall be presented by an attorney for the department. The\nrespondent may appear personally and may be represented by counsel at\nthe hearing, may produce witnesses and evidence in his or her behalf at\nthe hearing, may cross-examine witnesses and examine evidence produced\nagainst him or her at the hearing, and may issue subpoenas in accordance\nwith section three hundred four of the state administrative procedure\nact. The hearing officer shall not be bound by the rules of evidence,\nbut his or her determination that a violation of section sixty-five\nhundred twelve or sixty-five hundred thirteen of this article has\noccurred shall be based on a preponderance of the evidence. A hearing\nwhich has been initiated shall not be discontinued because of the death\nor incapacity of the hearing officer. In the event of a hearing\nofficer's death or incapacity to serve, a new hearing officer shall be\ndesignated by the department to continue the hearing. The new hearing\nofficer shall affirm in writing that he or she has read and considered\nevidence and transcripts of the prior proceedings.\n 6. Results of hearing. The hearing officer designated by the\ndepartment shall render a written report which shall include (a)\nfindings of fact, (b) a determination on each violation alleged in the\ncease and desist order, (c) a determination as to whether to accept,\nreject, or modify any of the terms of the cease and desist order in\nwhole or in part, and (d) the civil penalty imposed, if any. A copy of\nthe hearing officer's written report shall be served upon the respondent\nwith a notice setting forth the respondent's rights to an administrative\nappeal within ten days of the conclusion of the hearing.\n 7. Appeals. The decision of the hearing officer shall be final, except\nthat it may be appealed to a regents review committee within twenty days\nof the receipt of the hearing officer's report. The initiation of an\nappeal shall not in and of itself affect the validity or terms of the\ncease and desist order. The regents review committee shall consist of\nthree members, at least one of whom shall be a regent. The review shall\nbe based on the transcript and the report of the hearing officer. The\nrespondent may appear at the meeting, and the regents review committee\nmay require the respondent to appear. The respondent may be represented\nby counsel. The department shall notify the respondent at least ten days\nbefore the meeting (a) of the time and place of the meeting, (b) of the\nright to appear, (c) of the right to be represented by counsel, (d)\nwhether or not the respondent is required to appear, and (e) of such\nother information as may be considered appropriate. After the meeting,\nthe regents review committee shall transmit a written report of its\nreview to the board of regents. The board of regents (i) shall consider\nthe transcript, the report of the hearing officer, and the report of the\nregents review committee, (ii) shall decide whether the respondent has\nviolated each charge in the cease and desist order, (iii) shall decide\nwhat penalties, if any, to impose as prescribed in this section, and\n(iv) shall issue an order to carry out its decisions. Such decisions\nshall require the affirmative vote of a majority of the members of the\nboard of regents. The order shall be served upon the respondent\npersonally or by certified mail to the respondent's last known address\nand such service shall be effective as of the date of the personal\nservice or five days after mailing by certified mail. The decisions of\nthe board of regents under this section may be reviewed in a proceeding\npursuant to article seventy-eight of the civil practice law and rules\nbrought in the supreme court, Albany county. Such decisions shall not be\nstayed or enjoined except upon application to such supreme court\npursuant to article sixty-three of the civil practice law and rules with\nnotice to the department and to the attorney general.\n 8. General enforcement of cease and desist order. In any case where\nthe cease and desist order is confirmed by the board of regents or where\nthe respondent does not request an administrative hearing within the\nallotted time or does not appeal the decision of the hearing officer\nwithin the allotted time, an action or proceeding may be filed in the\nname of the state of New York seeking a restraining order, injunction,\nappropriate writ, or judgment against any person who violates the terms\nof the cease and desist order.\n 9. Special enforcement of civil monetary penalties. Provided that no\nappeal is pending on the imposition of such civil penalty, in the event\nsuch civil penalty imposed by the department remains unpaid, in whole or\nin part, more than forty-five days after written demand for payment has\nbeen sent by first class mail to the address of the respondent, a notice\nof impending default judgment shall be sent by first class mail to the\nrespondent. The notice of impending default judgment shall advise the\nrespondent: (a) that a civil penalty was imposed on the respondent; (b)\nthe date the penalty was imposed; (c) the amount of the civil penalty;\n(d) the amount of the civil penalty that remains unpaid as of the date\nof the notice; (e) the violations for which the civil penalty was\nimposed; and (f) that a judgment by default will be entered in the\nsupreme court, Albany county unless the department receives full payment\nof all civil penalties due within twenty days of the date of the notice\nof impending default judgment. If full payment shall not have been\nreceived by the department within thirty days of mailing of the notice\nof impending default judgment, the department shall proceed to enter\nwith such court a statement of the default judgment containing the\namount of the penalty or penalties remaining due and unpaid, along with\nproof of mailing of the notice of impending default judgment. The filing\nof such judgment shall have the full force and effect of a default\njudgment duly docketed with such court pursuant to the civil practice\nlaw and rules and shall in all respects be governed by that chapter and\nmay be enforced in the same manner and with the same effect as that\nprovided by law in respect to execution issued against property upon\njudgments of a court of record. A judgment entered pursuant to this\nsubdivision shall remain in full force and effect for eight years\nnotwithstanding any other provision of law.\n