§ 228 — Administrative review

§ 228. Administrative review. 1. Appeals board. The commissioner shall\nappoint three or more appeals officers, to serve at his pleasure, and\nshall select a chairman for each appeals board from the members so\nappointed. Appeals officers who are not full time employees of the\ndepartment shall be attorneys admitted to practice in New York state.\nThe commissioner shall assign at least three appeals officers to serve\non each appeals board established to hear appeals pursuant to this\nsection. Any appeals officer who is not a full time employee of the\ndepartment shall receive a per diem at a rate to be fixed by the\ncommissioner, with the approval of the director of the budget, for each\nday he serves on an appeals board, in addition to all necessary\nexpenses. The commissioner shall also designate such other members of\nthe department as may be necessary to assist an appeals board in\ncarrying out its assigned functions.\n 2. Right of appeal. (a) Any person who is aggrieved by a determination\nof a hearing officer may appeal such determination pursuant to the\nprovisions of this article.\n (b) Except as otherwise provided in this subdivision, a transcript of\nthe hearing resulting in the determination appealed from must be\nsubmitted on any such appeal.\n (c) If the only issue raised on appeal is the appropriateness of the\npenalty imposed, the appellant, in his discretion, may submit such\nappeal without a transcript of the hearing. In such event, the decision\nof the appeals board may be based solely on the appeal papers and the\nrecords of the department, and such decision shall not be subject to\njudicial review.\n (d) Where a transcript of the hearing is submitted at the time an\nappeal is filed, the determination of the appeals board will be subject\nto judicial review as prescribed in subdivision nine of this section.\n 3. Appeals boards. Each appeal filed pursuant to this section shall be\nreviewed by an appeals board, which shall make a determination of such\nappeal, and shall cause an appropriate order to be entered in the\nrecords of the department.\n 4. Time limitations. No appeal shall be reviewed if it is filed more\nthan thirty days after notice was given of the determination appealed\nfrom.\n 5. Appeal procedures. Any person desiring to file an appeal from an\nadverse determination pursuant to this section, shall do so in a form\nand manner provided by the commissioner. The transcript of any hearing\nwhich formed the basis for such determination will be reviewed only if\nit is submitted by the appellant. An appeal shall not be deemed to be\nfinally submitted until the appellant has submitted all forms or\ndocuments required to be submitted by the commissioner or this section.\n 6. Transcript of hearings. Transcripts of the record of any hearing\nmay be obtained at the cost to the department, if prepared by the\ndepartment, or at the rate specified in the contract between the\ndepartment and the contractor, if prepared by a private contractor. The\namount paid at such cost or rate by a person convicted who submits, upon\nan appeal from the determination of guilt, or upon such appeal and upon\na review pursuant to the provisions of article seventy-eight of the\ncivil practice law and rules, a transcript of the hearing or hearings\nwhich resulted in such determination, shall be refunded by the\ndepartment upon a final determination by the appeals board, dismissing\nthe charges, or if the charges were sustained by the appeals board, upon\na final determination by the court, dismissing the charges.\n 7. Fees. The fee for filing an appeal shall be ten dollars. No appeal\nshall be accepted unless the required fee has been paid. Such fees shall\nbe paid by the appeals board to the department of audit and control to\nthe credit of the justice court fund. After such audit as shall be\nrequired by the comptroller, such fees shall be credited to the general\nfund of the state.\n 8. Stays pending appeal. Whenever a determination has not been made\nwithin thirty days after an appeal has been finally submitted, a stay of\nexecution will be deemed granted by operation of law, and the license,\ncertificate, permit or privilege affected will be automatically restored\npending final determination.\n 9. Judicial review. (a) No determination of a hearing officer which is\nappealable under the provisions of this section shall be reviewed in any\ncourt unless an appeal has been filed and determined in accordance with\nthis section.\n (b) A determination of the appeals board in any case where a\ntranscript of the hearing has been submitted shall be subject to review\npursuant to the provisions of article seventy-eight of the civil\npractice law and rules. Provided, however, a statement by the hearing\nofficer at the conclusion of the hearing indicating that the charges\nhave been sustained and announcing the penalty imposed, together with a\nsummary of the reasons the appeal was denied by the appeals board, shall\nconstitute sufficient findings for the purpose of such review.\n