§ 398-F — Hearings; review board; appeals; judicial review

§ 398-f. Hearings; review board; appeals; judicial review. 1.\nHearings. (a) Upon the denial of an application for a certificate of\nregistration, the applicant shall, upon written request made within\nthirty days after the applicant is notified of such denial, be entitled\nto a hearing before an officer or employee of the department designated\nfor such purpose by the commissioner.\n (b) No certificate of registration shall be suspended or revoked,\npenalty imposed or determination of gross negligence or gross\novercharging made as provided for pursuant to paragraph (h) of\nsubdivision one of section three hundred ninety-eight-e of this article,\nuntil such registrant shall have been given the opportunity to be heard,\nupon written notice to the registrant, before an officer or employee of\nthe department designated for such purpose by the commissioner,\nprovided, however, that where a notice of hearing is mailed to a\nregistrant at the address shown in the records of the department and\nsuch registrant fails to attend such hearing, the commissioner may\nsuspend such registration pending the registrants attendance at such\nhearing. Requests for adjournment of such hearings shall be granted in\naccordance with regulations promulgated by the commissioner. A\nsuspension pending attendance at a hearing shall not be appealable.\n (c) The commissioner acting by such officer or employee in the\ndepartment as he may designate, shall have the power to subpoena and\nbring before such officer or employee so designated any person in this\nstate, or document, record or other relevant evidence, and administer an\noath to and take the testimony of any such person or cause his\ndeposition to be taken. A subpoena issued pursuant to this action shall\nbe regulated by the civil practice law and rules.\n (d) In the event a certificate of registration is revoked or an\napplication is denied, no such certificate shall be issued to such\nformer registrant or applicant for at least six months, nor thereafter,\nexcept in the discretion of the commissioner.\n 2. Review board. The commissioner shall establish a review board.\nSuch board shall consist of persons who have been engaged in the\nautomotive repair shop business for at least five years representing the\nautomobile repair shop industry, persons who shall be laymen having no\nassociation with the automotive repair shop industry representing\nconsumers, and persons who are attorneys admitted to practice in this\nstate and who have no interest in or represent as an attorney an\nautomotive repair shop. Members of the review board shall be appointed\ninsofar as is practicable to provide for representation of different\ngeographic areas of the state, and shall serve in no other capacity in\nthe department of motor vehicles. The number of persons appointed to\nsuch review board shall be determined by the commissioner and shall be\nappointed to serve at his pleasure. Three persons, one of whom shall be\nautomotive repair shop industry representatives, one of whom shall be\nconsumer representatives, and one of whom shall be an attorney appointed\npursuant to the provisions of this subdivision, shall as a panel review\neach appeal from a determination of the hearing officer. Such attorney\nshall serve as the chairman of such panel with respect to any such\nreview. Members of the review board shall be entitled to their actual\nand necessary expenses incurred in the performance of their duties\nthereunder, and shall be entitled to a per diem allowance as determined\nby the commissioner and approved by the director of the division of the\nbudget not to exceed one hundred dollars except that those members who\nserve as the chairman of a panel at appeal proceedings may be entitled\nto a per diem allowance in an amount so determined and approved but not\nexceeding one hundred fifty dollars.\n 3. Appeals. (a) The review board will review and determine all\nappeals filed pursuant to this article. Such determination may be to\naffirm, reverse or modify the initial determination of the hearing\nofficer, or to remand the case for a further hearing to determine\nadditional facts. Any review by such board shall be based solely on the\nrecord upon which the initial determination is made and upon any written\nbrief which may be submitted by or on behalf of the applicant or\nregistrant.\n (b) (1) Whenever a certificate of registration is suspended or\nrevoked, an application for such registration denied, determination of\ngross negligence or gross overcharging made, the sealing of a premises\nordered or penalty imposed by the commissioner pursuant to this article,\nexcept where such action is required by statute based upon a conviction,\nthe registrant, applicant, or owner of the premises as such term is\ndefined in paragraph (a) of subdivision five-a of section three hundred\nninety-eight-i of this article may appeal such determination pursuant to\nthe provisions of this article and such regulations as may be\npromulgated by the commissioner.\n (2) No appeal shall be reviewed unless it is submitted within sixty\ndays after written notice of the determination appealed from is mailed\nto the registrant or applicant.\n (3) Any person desiring to appeal pursuant to this article shall do\nso in a form and manner as provided by regulations promulgated by the\ncommissioner. The transcript of any hearing will only be reviewed if it\nis submitted by the appellant who shall bear the expense of furnishing\nsuch transcript.\n (4) The fee for filing an appeal shall be ten dollars. No appeal\nshall be deemed filed or submitted unless any required fee has been\npaid.\n (5) The submission of a written request to file such an appeal shall\nstay the operation of the initial determination until after a review is\nhad and a determination has been made; provided, however, that failure\nto timely submit such appeal and comply with the provisions of this\nsubdivision shall remove the stay imposed by this paragraph. Such\nreview shall be made and decided as expeditiously as possible; provided\nthat an appeal of an order directing the sealing of the premises\npursuant to subdivision five-a of section three hundred ninety-eight-i\nof this article shall, to the extent possible, be given priority over\nall other appeals filed pursuant to this article.\n (c) Whenever the same facts give rise to a hearing involving any\nother license or registration issued by the commissioner, a combined\nhearing may be held. If the registrant appeals only from a\ndetermination made with respect to his repair shop registration, he\nshall be entitled to a review as provided in subdivision one of this\nsection; however, if he appeals from any determination or determinations\nmade with respect to any other license or registration, as well as a\ndetermination with respect to his repair shop registration, the appeals\nprocedure established in article three-A of this chapter shall be\nfollowed in lieu of the procedure established in subdivision three of\nthis section.\n 4. Judicial review. The determination of the review board shall be\nsubject to review by the supreme court in the manner provided in article\nseventy-eight of the civil practice law and rules.\n