Any person found guilty by a court of competent jurisdiction of any
provision or requirement of this chapter or of any of the terms and conditions
of its permit or license, or any emergency regulation of the Town Board duly
issued under this chapter, shall be guilty of an offense punishable by a fine
of not less than $10,000 per offense and/or by imprisonment not exceeding
six months. In lieu of or in addition to such criminal penalties, each person
found to be in violation of any provision of this chapter shall be subject
to a civil penalty of not less than a formal written warning and not more
than $5,000 per violation, which may be imposed at the discretion of the Town
Board after hearing as provided below. Each day of a continuing violation
shall constitute a separate offense or violation and shall be subject to a
separate fine and/or civil penalty.
The Town Board may, after notice and an opportunity for a hearing, revoke
any permit or license issued pursuant to this chapter if the person holding
such permit violates any provision of this chapter or of any provision or
condition contained in any permit issued pursuant to this chapter; such remedy
shall be in addition to the penalties and remedies prescribed in this chapter.
A.
No permittee or licensee shall have its permit or license
suspended, modified or revoked nor shall the Town Board refuse to renew or
modify a permit or license without the permittee or licensee having first
been granted the opportunity for a hearing in accordance with the procedures
set forth below.
B.
Notwithstanding the above, the Town Board may, without
hearing and at its sole discretion, immediately suspend a permit or license
in accordance with the standards set forth in this chapter, without a hearing,
provided that the Town Board serves the permittee or licensee with a notice
of hearing along with a written notice of such suspension and provides an
expeditious post-suspension hearing in accordance with the provisions herein
set forth.
A.
Upon an initial determination by the Town Board that,
under the standards set forth in this chapter, the Town Board is entitled
to suspend a permit or license; to revoke a permit or license; to deny a permit
or license modification request; to deny a permit or license renewal; or to
take any other appropriate action against the privileges of a permittee or
licensee, the Town Board shall cause to be held a hearing before a hearing
officer selected by the Town Board.
B.
In all such cases, the Town Board shall issue a written
notice of hearing, by certified mail, return receipt requested, to the permittee
or licensee at the last known business address of such permittee or licensee,
except where a permit or license has been suspended, in which case, the notice
of hearing shall be served personally on the permittee or licensee, except
for a notice of violation to the driver of a vehicle required to be licensed,
but which is not displaying the decal required by this chapter, which may
be issued in the form of a standardized traffic ticket by a police officer
within the Town of Goshen.
(1)
The personal service required to be made upon such permittee
or licensee shall be made in accordance with the provisions of the New York
State Civil Practice Law and Rules. Service of the notice of hearing shall
be effective as of the date of mailing or the date on which personal service
was effected.
(2)
The notice of hearing shall clearly and concisely advise
the permittee or licensee of the Town Board's initial determination of decision
relating to such permit or license and of the permittee's or licensee's right
to a hearing pursuant to same.
(3)
The hearing shall be held as soon as possible, but in
no case later than 60 days after service of the notice of hearing upon the
permittee or licensee. Notwithstanding the above, a hearing required pursuant
to the Town Board's determination to suspend or revoke a permit or license
shall be held not later than 15 days after service of the notice of hearing.
In the case of a suspension, at the discretion of the Town Board, the permittee
or licensee may sign an agreement with the Town Board whereby the permittee
or licensee will commit to remedy the condition which endangers the health,
safety or welfare of the public or to otherwise remedy the condition which
is the basis of such determination of suspension by a date certain; the reinstatement
of the permit or license being conditioned upon such performance.
(4)
The notice of hearing shall include the following:
(a)
The time, place and nature of the hearing;
(b)
A statement of the legal authority and jurisdiction under
which the hearing is to be held;
(c)
A statement outlining the matters asserted, including
alleged facts supporting the initial determination, the license violation
or the license suspension;
(d)
A notice that, upon application of the respondent, a
more detailed and definite statement of the matters being asserted will be
provided. The Town Board shall make the determination as to whether the initial
statement of the matters asserted is not sufficiently definite. Such determination
by the Town Board shall not be subject to judicial review;
(e)
The respondent's right to present evidence;
(f)
The respondent's right to examine and cross-examine witnesses;
(g)
The respondent's right to be represented by counsel;
(h)
A statement that the respondent's failure to appear shall
constitute a default by the respondent and that the hearing may proceed in
the respondent's absence and a determination made based solely upon evidence
submitted by the Town Board;
(i)
That a respondent may waive his right to a hearing and
accept the initial determination of the Town Board, without objection, by
signing where indicated on and returning the notice of hearing to the Town
Board together with any fine which was assessed by the Town Board in conjunction
with such determination. Upon the receipt of such a properly completed acknowledgment
by the Town Board, the Town Board shall file the same with the hearing officer,
along with a notice of cancellation of hearing;
(j)
The name and address of the hearing officer for the filings
of any notices or papers pursuant to such proceedings.
C.
The hearing officer shall not be bound by the strict
rules of evidence in the conduct of a hearing initiated pursuant to this chapter,
but his or her findings of fact and conclusions of law shall be founded upon
a fair preponderance of the evidence presented at the hearing. The hearing
officer shall admit and consider any evidence of mitigation offered by the
permittee or licensee.
D.
After the conclusion of a formal hearing, the hearing
officer shall prepare and issue a report containing a summary of the evidence,
findings of fact, conclusions of law and recommendation(s) to the Town Board.
E.
The recommendations of the hearing officer may include,
but shall not be limited to, a recommendation as to whether the Town Board's
initial determination should be rescinded, affirmed, or modified and/or whether
a suspended or revoked license should be reinstated unconditionally or upon
the condition that the threat to the health or safety or welfare of the public
is remedied by the permittee or licensee in a specified manner according to
a specified timetable.
F.
Upon the conclusion of a formal hearing and after consideration
of the hearing officer's report and recommendations, and any evidence of mitigation,
the Town Board shall make a final determination based on a fair preponderance
of the evidence, and shall execute an administrative order implementing such
decision.
G.
Permit or license violations; failure to pay fines or
penalties.
(1)
In the case of permit or license violations, the order
of the Town Board may include, but shall not be limited to: the assessment
of civil penalties, as provided by this chapter; the approval of a stipulation
of settlement which shall include, but not be limited to, a plan and schedule
to remedy the condition which caused the violation, if such measures are necessary
and appropriate to correct the violation; and suspended penalties.
(2)
The failure to pay any such criminal fines or civil penalties
as may be assessed pursuant to this chapter shall constitute separate grounds
for suspension, revocation or nonrenewal of a license. The only issue to be
resolved at a hearing which is conducted pursuant thereto is whether or not
the penalty was paid.
H.
Where any violation of this chapter by a permittee or
licensee has caused the Town Board to incur any expenses with respect to enforcement,
such expenses may be charged to the permittee or licensee. In the discretion
of the Town Board, such expenses may be separately collected in a civil suit
against the permittee or licensee, brought by the Town's Attorney in the name
of the Town in a court of competent jurisdiction, in the event that the licensee
refuses to pay such charges voluntarily.
In addition to the penalties and remedies provided above, an action
or proceeding in the name of the Town may be commenced in any court of competent
jurisdiction to compel compliance with or restrain by injunction the violation
of any provision of this chapter, or of the provisions and conditions contained
in any permit or license issued pursuant to this chapter.
