[HISTORY: Adopted by the Common Council of the City of Buffalo 3-5-1996, effective 3-8-1996. Amendments noted where applicable.]
The following terms and words when used in this chapter shall have the meaning and effect as follows:
- MUNICIPAL CODE OR STATUTORY VIOLATION
- Any infraction constituting a violation of the City code or a statutory provision regarding conditions that constitute a threat or danger to the public health, safety or welfare.
- Any party or entity charged with a municipal code or statutory violation within the City of Buffalo.
- Any person, corporation, partnership, firm, agency, association, lessor, organization or entity in whom the ownership, dominion or title of the property is vested.
- Any person who possesses, holds property or who has the temporary use and occupancy of the property owned by another person.
There is hereby created an administrative tribunal to be known as the "Bureau of Administrative Adjudication" to have jurisdiction to hear and determine charges of municipal code violations or statutory violations and fee disputes that constitute a threat or danger to the public health, safety or welfare.
The head of such Bureau of Administrative Adjudication shall be the director and chief administrative law judge and shall have all the powers of an administrative law judge conferred by § 381 of Article 14-BB of the General Municipal Law and shall perform all duties specified thereunder. The director shall be appointed by the Mayor for a term of five years, subject to confirmation by the common council.
The director shall appoint administrative law judges who shall be attorneys admitted to practice in the state of New York for at least three years and shall have such other qualifications as may be prescribed by the director.
An administrative law judge shall not participate in any proceeding to which he or she is a party, in which he or she has been an attorney, counsel or representative, if he or she is related by consanguinity or affinity to any party to the controversy within the sixth degree or where such participation is otherwise prohibited by law.
Administrative law judges shall ensure that all hearings are conducted in a fair and impartial manner.
The Bureau of Administrative Adjudication shall have the following functions, powers and duties:
To accept pleas and to hear and determine charges of code or statutory violations that constitute a threat or danger to the public health, safety or welfare. Further, the Bureau may conduct hearings with regard to fee disputes, including, without limitation, excessive avoidable alarms and excessive property inspections or any other fee disputes that the director deems appropriate.
To provide for penalties other than imprisonment for code or statutory violations in accordance with a schedule of monetary fines and penalties; provided however, that monetary penalties shall not exceed the maximum amount allowed by City court or any other court. Further, such penalties and fines shall become effective 45 days after the first Council meeting at which they appear on the agenda as an item of business, during which period the Council may either disapprove or modify them.
To adopt rules and regulations, not inconsistent with any applicable provision of law, to carry out the purposes of Article 14-BB of the General Municipal Law, including but not limited to rules and regulations prescribing the internal procedures and organization of the bureau, the manner and time of entering pleas, the conduct of hearings and the amount and manner of payment of fines.
To issue subpoenas to compel the attendance of persons to give testimony at hearings and to compel the production of relevant records, books, papers and other materials.
To enter judgments of the Bureau.
To answer within a reasonable period of time all relevant and reasonable inquires made by either a person charged with a municipal code or statutory violation or his or her attorney concerning the notice of violation served on that person. The Bureau must also furnish the person charged, upon his or her request, a copy of the original notice of violation. Failure to comply with the provisions of this subsection within 30 days of such request, forwarded to the Bureau by certified or registered mail, return receipt requested, shall result in an automatic dismissal of all charges relating to that particular notice of violation upon the request of the respondent.
To prepare and issue a notice of violation in blank to members of the police department, fire department, inspections department, street sanitation department, license office and to any other department, division or office the director deems appropriate.
To have at least one administrative appeals panel consisting of three administrative law judges that will hear appeals from a determination made by any administrative law judge.
The notice of violation shall contain information advising the person charged of the manner and the time in which such person may either admit or deny the violation charged in the notice. Such notice of violation shall also contain a warning to advise the person charged that failure to plead in the manner and time stated in the notice may result in a default decision and order being entered against such person. Every notice of violation shall identify the provision of law charged, shall set forth the factual bases for the violation, shall state whether the facts set forth therein are known personally to the issuing officer and, if the facts are not so known, the notice of violation shall identify the source of knowledge of such facts. Where the notice of violation does not contain this information, it shall be dismissed at the request of the respondent or the administrative law judge may dismiss the notice of violation upon her or his own motion.
The original or a copy of the notice of violation shall be filed and retained by the Bureau and shall be deemed a record kept in the ordinary course of business.
The notice of violation or copy thereof when prepared and served shall constitute notice of the violation charges and if sworn to or affirmed shall be prima facie evidence of the facts contained therein.
A notice of violation shall be served personally upon the owner of the property or served upon a "person of suitable age and discretion" at the owner's actual place of business, dwelling place or usual place of abode and then mailed to the owner's "last known residence." If service of the notice of violation cannot be made after a showing of due diligence then the notice can be affixed to the door of one of the above-named places and a copy of the notice of violation shall be mailed to the owner's last known residence, except that:
Service of the notice of violation may be made by delivering such notice to a person employed by the person charged:
To work on the premises the occupancy of which caused such violation;
At the premises at which the person charged actually conducts the business the operation of which gave rise to the violation;
At the site of the work with respect to which the violation occurred; or
At the place at which the violation occurred.
Service of a notice of violation may be made by certified mail, return receipt requested.
Service of a notice of violation of any code or ordinance relating to the prevention of noise pollution caused by an audible motor vehicle burglar alarm or relating to the parking, stopping or standing of a motor vehicle may be made upon the owner of such motor vehicle by affixing such notice to such vehicle in a conspicuous place. Service of the notice of violation upon a corporation shall be made by serving the secretary of state or by serving an officer of the corporation or any other agent authorized by appointment or by law to receive service or pursuant to Subsection D(1) of this section.
The Bureau shall not enter any final decision or order unless the notice of violation shall have been served in the manner prescribed by law and/or as prescribed in the foregoing paragraph.
Proof of service made pursuant to this chapter shall be filed with the Bureau. Where service is made by certified mail pursuant to Subsection D of this section, proof of service shall include the return receipt evidencing receipt of the notice served by mail. Service shall be complete 10 days after such filing.
Where service of the notice of violation is not made in a manner authorized by law for the violation charged, it shall be dismissed at the request of the respondent, or the administrative law judge may dismiss the notice of violation upon her or his own motion.
A plea shall be entered within eight days from the date service of the notice of violation is complete. A plea may be entered in person, by an authorized representative or by ordinary mail at such location of the Bureau. The Bureau shall not reject any plea entered by mail if the postmarked date on the envelope is within eight days from the date service of the notice of violation was complete. Failure of the respondent to answer within eight days will subject the respondent to additional penalties.
Pleas by mail shall be made in the following manner:
A plea of guilty shall be accompanied by a check or money order (not cash) for the payment in full of the scheduled fine.
The respondent pleading "not guilty" or "guilty with an explanation" may request a hearing. This shall be done at the time of pleading by completing the reverse side of the notice of violation according to the instructions thereon or by completing the "request for hearing" form provided by the Clerk at the Bureau.
If a plea of "not guilty" or "guilty with an explanation" is made in person, an immediate hearing may be conducted upon the request of the respondent. The hearing shall only be conducted if it is convenient to the Bureau.
Upon receipt of the notice of violation with a plea of "not guilty" or "guilty with an explanation," the Bureau shall advise the respondent, in person or by first-class mail, of the date, time and place of the hearing. The Bureau reserves the right to set the date, time and place of the hearing.
Where a respondent has failed to plead within the time allowed by the rules of the Bureau or has failed to appear on the designated hearing date or subsequent dated following an adjournment or fails to comply with the determination of the administrative law judge, such failure to plead or appear or comply shall be deemed for all purposes to be an admission of liability and shall be grounds for rendering a default decision and order imposing a penalty up to the maximum amount prescribed under rules and regulations of the Bureau for the violation charged.
Any final order of the Bureau imposing a civil penalty, whether the adjudication was had by hearing or upon default or otherwise, shall constitute a judgment rendered by the Bureau against the respondent which may be entered in the City court or other equivalent court of the municipality or any other place provided for the entry of civil judgments within the state, and may be enforced against the respondent and his, her or its property without court proceedings in the same manner as the enforcement of money judgments enter in civil actions; provided however, that no such judgment shall be entered which exceeds the jurisdiction of such City court or other court.
A default decision and order may be opened within one year of its entry upon written application showing excusable default and a defense to the charge. A default decision and order may thereafter be opened in the discretion of the director only upon written application showing excusable default, a defense to the charge and good cause for the delay.
Before a judgment based upon a default may be so entered, the Bureau must have notified the respondent by first-class mail in such form as the director may require of the default decision and order and the penalty imposed, that a judgment may be entered in the City court of other equivalent court of the municipality or any other place provided for the entry of civil judgments within the State of New York that entry of such judgment may be avoided by requesting a stay of default for good cause shown and either requesting a hearing or entering a plea pursuant to the rules of the Bureau within 30 days of the mailing of such notice.
All hearings shall be held in the City of Buffalo at such place as the director shall designate from time to time. Hearings shall be held at least once per month.
All hearing shall be held from 9:00 a.m. to 4:00 p.m., except on Saturdays, Sundays and legal holidays, or at such other time designated by the director.
Every hearing for the adjudication of a charge of a violation shall be held before an administrative law judge or the chief administrative law judge. All hearings shall be public unless the respondent requests that the hearing be closed to the public. The respondent may be represented by legal counsel. The administrative law judge shall not be bound by the rules of evidence except rules relating to privileged communications. No charges may be sustained except upon proof by substantial evidence. All testimony shall be given under oath or affirmation.
A record shall be made of every hearing either by stenographic recordings or by mechanical or electronic methods as the director shall determine. A transcript of such record shall be supplied to a respondent upon application and upon the payment of a fee as provided in the rules and regulations of the Bureau and Chapter 175, Fees. The administrative law judge may, in his or her discretion or at the request of the respondent, on a showing of good cause and need thereof, subpoena the attendance of witnesses, including the issuing officer, and the production of relevant books, records or other information.
In the case of a refusal to obey a subpoena, the Bureau may make application to a court of competent jurisdiction for an order requiring such appearance, testimony or production of evidence.
The Bureau may, with or without the respondent's request or consent, consolidate for hearing or appeal one or more charges pending against such respondent. An adjournment may be requested by the respondent (up to 24 hours) prior to the hearing, but not more than two adjournments shall be granted except under extraordinary circumstances which the director shall determine.
The administrative law judge shall make final findings of fact and a final determination or order. All findings of fact, decisions, determinations and orders shall be rendered in an expeditious manner.
A final determination or order of the Bureau imposing a civil penalty shall constitute a judgment and a record showing payment or nonpayment of penalties. A copy of such judgment record or transcript thereof may be filed in the office of the Clerk of the City of Buffalo and/or in the office of the Clerk of the County of Erie or in such other County wherein the respondent resides or is employed.
Where any final decision or order may not be entered and enforced as a judgment because the amount of civil penalty exceeds the jurisdictional amount of the City court or other equivalent court of the municipality, with respect to actions and proceedings for the recovery of money, such decision or order may be enforced by the commencement of an action or proceeding for the recovery of such civil penalties in a court of competent jurisdiction by the municipality.
There shall be one or more administrative appeals within the Bureau. Each panel shall consist of three administrative law judges. In no event shall the administrative law judge from whom such appeal of a decision, determination or order is taken be included in the panel determining such appeal. The appeals panel shall have the power to review the record and the findings of the administrative law judge and may reverse, modify or remand any such decision determine or order appealed therefrom.
A respondent may appeal on the facts and/or the law, a final decision, final determination or final order. No appeal may be made where a plea of "guilty" or "guilty with an explanation" was entered by the respondent at the hearing.
Upon rendering a decision, making a final determination or issuing a final order, the administrative law judge shall provide the respondent with a form notice of appeal and shall explain to such party on the record the method of filing the notice of appeal and time limits, the requirements of Subsection E of this section concerning the payment of penalties and posting of bonds pending appeal, including the right to request exemption therefrom, and that no further court challenge is permitted by law unless an administrative appeal is taken.
For good cause shown, the administrative appeals panel may permit the filing of a notice of appeal after the thirty-day period.
No appeal of a decision, determination or order of an administrative law judge imposing civil penalties shall be decided unless such civil penalties are paid or a cash or recognized surety company bond shall have been posted in the amount of such civil penalties. No such payment or posting of such bond shall be required where the respondent is the holder of a current license or permit for the operation of a business issued by an agency of officer of the City. Upon a showing of undue hardship or where justice may require, the administrative law judge who decided the case or appellate panel to which the appeal is assigned may order that the appeal shall be decided without requiring such payment or posting of such bond.
The determination of the appeal panel shall be rendered within 90 days after the submission of all relevant papers to the panel. The determination of the appeals panel shall be the final determination of the Bureau for the purposes of judicial review. Judicial review may be sought pursuant to Article 78 of the Civil Practice Law and Rules.