§ 398-I — Unregistered operation; procedures and penalties

§ 398-i. Unregistered operation; procedures and penalties. 1. The\ncommissioner or any person deputized by him shall hear and determine any\nallegation that a person has operated a repair shop without being\nregistered as required by subdivision one of section three hundred\nninety-eight-c of this chapter. Upon a determination that a person has\nso operated, the commissioner or person deputized by him shall assess\ncivil penalties as provided in subdivisions two and three of this\nsection.\n 2. Except as provided in subdivision three, any person who operates a\nrepair shop without being registered shall be required to pay to the\npeople of this state a civil penalty in the sum of one thousand dollars.\nHowever, any such person against whom such penalty has been assessed may\navoid all but five hundred dollars of such penalty by obtaining a\nregistration as required by this article, provided that application for\nsuch registration is made not more than ten days after the imposition of\nsuch penalty.\n 3. (a) Any person who operates a repair shop while his repair shop\nregistration is revoked or suspended, shall pay to the people of this\nstate a civil penalty in the sum of one thousand dollars. Such civil\npenalty may not be avoided.\n (b) Any person who operates a repair shop without being registered as\nrequired by subdivision one of section three hundred ninety-eight-c of\nthis chapter who has previously had a civil penalty assessed for\nunregistered operation shall pay to the people of this state a civil\npenalty in the sum of one thousand dollars. Such civil penalty may not\nbe avoided.\n 4. (a) If it is determined that a person has operated a repair shop\nwithout being registered as required by this article, such determination\nmay be appealed to the review board established pursuant to section\nthree hundred ninety-eight-f of this chapter. The procedure established\nin such section shall apply to such appeals provided that no appeal\nshall be accepted or determined by the review board unless the civil\npenalty assessed against such person has been paid as prescribed in\nsubdivision two of this section.\n (b) The requirement that the civil penalty be paid before an appeal\ncan be accepted or determined by the review board shall not apply to an\nappeal by a repair shop from a determination made pursuant to\nsubdivision three of this section.\n (c) If the review board finds that the person has not been operating\na repair shop without being registered, any civil penalty which has been\npaid shall be refunded, any premises ordered to be sealed pursuant to\nsubdivision five-a of this section shall be unsealed, and if such board\ndetermines that registration as a repair shop is not required and a\nregistration has been obtained to avoid the civil penalty assessed, the\nregistration shall be cancelled and, notwithstanding the provisions of\nparagraph (a) of subdivision three of section three hundred\nninety-eight-c of this chapter, all fees paid for such registration\nshall be refunded.\n 5. Civil penalties assessed under this section shall be paid to the\ncommissioner for deposit into the state treasury, and unpaid civil\npenalties may be recovered by the commissioner in a civil action in the\nname of the commissioner. In addition, as an alternative to such civil\naction and provided that no proceeding for judicial review shall then be\npending and the time for initiation of such proceeding shall have\nexpired, the commissioner may file with the county clerk of the county\nin which the registrant is located a final order of the commissioner\ncontaining the amount of the penalty assessed. The filing of such final\norder shall have the full force and effect of a judgment duly docketed\nin the office of such clerk and may be enforced in the same manner and\nwith the same effect as that provided by law in respect to executions\nissued against property upon judgments of a court of record.\n 5-a. Sealing of the premises. (a) In addition to any other penalties\nset forth in this article, the commissioner, after notice to the owner\nof the premises and the owner of the motor vehicle repair shop and the\nopportunity for a hearing, shall be authorized to\n (i) order the sealing of the premises upon which any person has\noperated a motor vehicle repair shop without being registered, provided\nthat such premises is primarily used for such activity and provided,\nfurther, that the commissioner shall not seal any dwelling unit or other\nspace lawfully used solely for residential purposes;\n (ii) order that any devices, items or goods utilized in the operation\nof a motor vehicle repair shop and relating to such activity for which a\nregistration for operation is required but has not been obtained\npursuant to the provisions of this article shall be removed, sealed or\notherwise made inoperable; and\n (iii) order the removal of motor vehicles on the premises to a garage,\npound or other place of safety. For purposes of this article, the term\n"owner of the premises" shall mean the owner, lessor, lessee or\nmortgagee of the building, erection or place wherein any person is\noperating an unregistered motor vehicle repair shop. The person in whose\nname the real estate affected by the orders of the commissioner is\nrecorded in the office of the city register or the county clerk, as the\ncase may be, shall be presumed to be the owner thereof.\n (b) The lack of knowledge of, acquiescence or participation in or\nresponsibility for, the operation of an unregistered motor vehicle\nrepair shop, on the part of the owner of the premises and/or the owner\nof the motor vehicle repair shop, shall not be a defense by such owners.\n (c) Orders of the commissioner issued pursuant to paragraph (a) of\nthis subdivision shall be conspicuously posted at the premises upon\nwhich unlawful operation occurred.\n (d) An order of the commissioner issued pursuant to paragraph (a) of\nthis subdivision shall be stayed with respect to any person who, prior\nto service of the notice required by such paragraph, has submitted a\ncomplete application, in proper form and accompanied by the requisite\nfee, for a certificate of registration to operate a motor vehicle repair\nshop or a renewal thereof, while the application is pending.\n (e) Ten days after the posting of an order issued pursuant to\nparagraph (a) of this subdivision, and upon the written directive of the\ncommissioner, officers and employees of the department and police\nofficers of any appropriate law enforcement agency shall be authorized\nto act upon and enforce such order. The commissioner may take such steps\nas are lawful and necessary to prevent the removal from the premises of\nany devices, items, goods or personal property used in the conduct of a\nmotor vehicle repair shop business during such ten day period.\n (f) (i) Any devices, items, goods or motor vehicles removed pursuant\nto the provisions of subparagraphs (ii) and (iii) of paragraph (a) of\nthis subdivision shall be stored in a garage, pound or other place of\nsafety and the owner or other person lawfully entitled to the possession\nof such devices, items, goods or motor vehicles may be charged with\nreasonable costs for removal and storage payable prior to the release of\nsuch devices, items, goods or motor vehicles to such owner or such other\nperson.\n (ii) The commissioner shall, by first class mail, notify the\nregistered owner of any motor vehicle removed pursuant to subparagraph\n(iii) of paragraph (a) of this subdivision within five business days of\nthe removal, of the location of such motor vehicle and the actions\nnecessary to recover such motor vehicle.\n (iii) The owner or other person lawfully entitled to reclaim the\ndevices, items, goods or motor vehicles removed pursuant to this section\nshall reclaim such devices, items, goods or motor vehicles within ninety\ndays of their removal, or such devices, items, goods or motor vehicles\nshall be subject to forfeiture upon notice and judicial determination in\naccordance with the provisions of law. Upon forfeiture the commissioner\nshall, upon a public notice of at least five days, sell such forfeited\ndevices, items, goods or motor vehicles at public sale. The net\nproceeds of such sale, after deduction of the lawful expenses incurred,\nshall be paid into the general fund.\n (iv) Lessors of devices, items, goods or personal property removed\npursuant to the provisions of subparagraph (ii) of paragraph (a) of this\nsubdivision may reclaim leased devices, items, goods or personal\nproperty upon presentment of proof that the lessor is not otherwise\ninvolved, directly or indirectly, in the ownership or operation of such\nmotor vehicle repair shop and that the lessee is in breach of the lease\nor in default of payments, and upon payment of any reasonable costs\nimposed for the removal and storage of such devices, items, goods or\npersonal property pursuant to this subdivision.\n (g) The commissioner shall order any premises which are sealed\npursuant to paragraph (a) of this subdivision to be unsealed upon:\n (i) payment of any and all fines, penalties and restitution; and\n (ii) presentment of proof that the required registration has been\nobtained for operation of a motor vehicle repair shop on the premises,\nor proof satisfactory to the commissioner, submitted by the owner of the\npremises, that such premises will not be used in violation of this\narticle.\n (h) In addition to any fines, penalties or actions taken with respect\nto a motor vehicle repair shop and the persons operating, providing\nequipment or otherwise involved in the operations of such shop, the\ncommissioner may also take action with respect to the owner of the\npremises where such shop has operated or is operating as provided in\nthis paragraph. Upon a finding by the commissioner, after notice and the\nopportunity for a hearing, that an unregistered motor vehicle repair\nshop has been operated at the same premises on two or more separate\noccasions within eighteen months resulting in two or more separate\ndeterminations by the commissioner of a violation of this section with\nrespect to such premises, and that the owner of the premises knowingly\nallowed such operation, the commissioner may impose upon such owner of\nthe premises a civil penalty in an amount not to exceed fifteen thousand\ndollars, or may order the sealing of the premises for not more than one\nhundred eighty days, or both such actions.\n (i) Nothing contained herein shall be construed to authorize the\ncommissioner to execute an order issued pursuant to this subdivision\nwithout the presence and assistance of a police officer of an\nappropriate law enforcement agency.\n (j) Removal of the seal on any premises sealed pursuant to the\nprovisions of this subdivision shall constitute a misdemeanor.\n 6. No allegation of unregistered operation as a repair shop shall be\nheard or determined unless notice of such allegation has been mailed to\nsuch person within two years after the date of the alleged unregistered\noperation.\n