§ 2-03 Enforcement Hearings and Post-Hearing Procedures.
RCNY § 2-03
(a)Designation of OATH. For the purposes of Section 2603(h)(2) of the Charter, and in accordance with Section 1048 of the Charter, the Board designates OATH to conduct hearings in accordance with the OATH Rules, except as otherwise provided by these rules.
(b)Commencement of proceedings at OATH.
(1)The Board will serve a Notice of Petition and Petition by certified mail, return receipt requested, and first class mail, to the respondent's last known residential address or actual place of business and to the respondent's representative, if applicable. After service, the enforcement attorney will file the Notice of Petition and Petition with OATH and will provide OATH with potential dates for a settlement conference and potential dates for a hearing.
(2)After the conference and hearing dates have been scheduled at OATH, the enforcement attorney will serve a Notice of Hearing by certified mail, return receipt requested, and first class mail, to the respondent's last known residential address or actual place of business and to the respondent's representative, if applicable.
(c)Ex parte communications.
(d)Answer. The respondent may serve and file a written answer to the Petition in accordance with the OATH Rules. The answer may contain specific responses, by admission, denial, or otherwise, to each allegation of the Petition and assert all affirmative defenses, if any. The respondent may include in the answer matters in mitigation. The answer must contain the full name, address, telephone number, and email address of the respondent. If the respondent is represented, the representative's name, address, telephone number and email address must also appear on the answer. The answer must be signed by the respondent or respondent's representative. The OATH Rules govern the procedures for a Notice of Appearance, withdrawal, or substitution of the respondent’s representative.
(e)Settlement. At the OATH settlement conference, an enforcement action may be resolved by settlement agreement pursuant to 53 RCNY § 2-02(f).
(f)Hearing.
(3)The enforcement attorney will initiate the presentation of evidence. After the enforcement attorney has completed the presentation of the Board's evidence, the respondent or respondent’s representative may present evidence. The enforcement attorney may present rebuttal evidence.
(4)The respondent or respondent’s representative will make a closing statement first, after which the enforcement attorney will make a closing statement. Written closing statements may not exceed 30 double-spaced pages. The order and length of the closing statements may be modified by the OATH ALJ on motion for good cause shown.
(g)OATH report. After a hearing has been conducted, OATH will issue a confidential report of its recommended findings of fact and conclusions of law and its recommended disposition of the enforcement action. OATH will send the report, along with the original transcript of the hearing and all documents admitted into evidence, to the Board for review. OATH will send a copy of the report to the enforcement attorney and the respondent or respondent's representative, if applicable.
(h)Comment on OATH report. Within 20 days from the date of the OATH report, each party may submit a comment to the Board, which may not exceed 30 double-spaced pages, to explain, rebut, or provide information concerning OATH's recommended findings of fact, conclusions of law, and disposition. If either party submits a comment, the opposing party may submit to the Board a response to such comment, which may not exceed 15 double-spaced pages, within 30 days from the date of the OATH report. Copies of all such submissions must be shared with the opposing party. The Board will only consider evidence admitted at trial.
(i)Final review by the Board. For the purposes of Section 2603(h)(3) of the Charter, the Board will review the OATH report, along with the original transcript of the hearing and all documents admitted into the record, and any comments and responses to comments submitted to the Board pursuant to 53 RCNY § 2-03(h), to determine whether it has been proven by a preponderance of the evidence that the respondent violated a provision of a law identified in 53 RCNY § 2-01(a). In accordance with 53 RCNY § 2-03(c), any Board attorney involved in the prosecution of the enforcement action will not participate in the Board's final review.
(j)Board order finding a violation.
(k)Board dismissal. If the Board determines that it has not been proven by a preponderance of the evidence that the respondent violated any provision of the laws identified in 53 RCNY § 2-01(a), the Board will issue a written decision that dismisses the enforcement action and states its final findings of fact and conclusions of law. The decision will be sent to the respondent and respondent's representative, if applicable, and will not be made public. All underlying records, reports, memoranda, and files will remain confidential in accordance with Section 2603(k) of the Charter. (Added City Record 8/30/2019, eff. 9/29/2019; amended City Record 2/2/2024, eff. 3/3/2024)
