§ 47.77 Closing and Enforcement.
RCNY § 47.77
(a)Imminent health hazards.
(1)When the Department determines that any program is being operated in a manner that may give rise to an imminent health hazard, or is maintaining one or more conditions that constitute an imminent health hazard, or that its operation otherwise presents a risk of endangering the health or safety of children or other persons, the Commissioner may order such program to close and to discontinue operations, suspending its permit, without further proceedings, by service of an order upon the permittee, or other person(s) managing or in control of such program. An order issued, pursuant to this section shall provide the permittee, or other person(s) in control, an opportunity to be heard and to show cause why such program should not remain closed until there are changed circumstances, or the correction, removal or abatement of the dangerous or detrimental condition(s).
(2)The Commissioner may require any permittee that consistently fails to correct imminent or repeat, serious violations to prepare a corrective action plan in which factors contributing to violations are analyzed and a plan is created to address and correct violations. When, in the opinion of the Commissioner, a permittee is unable or unwilling to write or implement a corrective action plan that adequately protects the health and safety of children, the Commissioner shall provide the permittee with an opportunity to show cause at a hearing why its permit should not be suspended or revoked.
(b)Operating without a permit. Operating any program without a currently valid permit shall be deemed to present an imminent health hazard to children in attendance, for which such program shall be ordered closed without further proceedings.
(c)Additional operating terms and conditions authorized. If the Department determines that the reopening of a program that has been ordered closed and its continuing operation will not present any risk to any person, the Department may authorize such reopening and may impose such additional conditions upon continuing operation that it deems necessary to avoid recurrence of imminent health hazards.
(d)Service of orders. Service of any order issued, pursuant to this Article may be made upon any person to whom the order is addressed, to a permittee, to a person required to hold a permit or upon any other person of suitable age and discretion who is asserting ownership, management or control of such program. Service of any order may be made in any manner provided in 24 RCNY Health Code § 3.05(b), or successor provision, and may be delivered to the home or business address of the permittee listed in the permit issued by the Commissioner, or in the permit application or at the place where the program is being operated.
(e)Posting orders to close; notifying parents. Upon issuing an order to close a program for any reason, the Department shall post a copy of the order at the entrance to the premises subject to such order, and shall notify and provide a copy of the closing order to the parents or other persons who arrive at the program to pick up children attending the program.
(f)Padlocking. Upon finding that any order issued, pursuant to this section has not been complied with, the Department may, without further notice, seal or padlock the premises where services are provided and take any other measures deemed necessary to obtain compliance with the order.
(g)Operation in violation of order prohibited. No person shall remove a padlock, seal or an order posted, pursuant to this section, or open to the public or operate a program in violation of an order issued, pursuant to this section.
(h)Other actions. In addition to any action authorized by this Article or 24 RCNY Health Code Article 5, the Commissioner may refuse to renew, or may revoke or deny issuance of a permit if: (1) the program's permit was ordered suspended more than once during the past 36 months, or (2) the program's permit was previously ordered suspended for having lost a child, or another instance of inadequate supervision or inappropriate behavioral management of children; or (3) the permittee failed to submit or implement a fully responsive corrective action plan; or (4) a permit applicant or permittee continued operating a program when a permit was either ordered suspended or the program was ordered closed for operating without a permit; or (5) the Commissioner determines that a permittee is unable or unwilling to correct a pattern of serious, repeated violations including, but not limited to, those defined as imminent health hazards; or (6) the Commissioner finds out after issuing a permit that a previous or current permit, license, registration or other authorization to operate a program, held by the permittee, or any officer, manager or director of the permitted entity, was or is being suspended or revoked in any jurisdiction.
(i)Department authority not limited by this section. Nothing herein shall be construed to limit the authority of the Department to take any action it deems appropriate, including issuance of notices of violation seeking monetary penalties for violations cited by the Department, or commencement of a proceeding or action provided for by this Code or other applicable law, including actions or issuance of orders denying, suspending, or revoking permits.
(j)Effect of permit revocation. When a permit has been ordered revoked by the Commissioner, and the Commissioner finds that the circumstances resulting in revocation show that the permittee or other persons exercising management and control are unable or unwilling to operate a program in compliance with this Code, an application for a new permit will not be accepted for at least five years from the date revoked from either the permittee or from any individual person exercising management and control of the program that had its permit revoked. (Amended City Record 9/20/2016, eff. 10/20/2016; amended City Record 9/20/2017, eff. 10/10/2017; amended City Record 6/12/2018, eff. 7/12/2018)
