[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:
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.
A.
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.
B.
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.
C.
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:
A.
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.
B.
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.
C.
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.
D.
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.
E.
To enter judgments of the Bureau.
F.
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.
G.
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.
H.
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.
A.
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.
B.
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.
C.
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.
D.
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:
(1)
Service of the notice of violation may be made by delivering such
notice to a person employed by the person charged:
(a)
To work on the premises the occupancy of which caused such violation;
(b)
At the premises at which the person charged actually conducts
the business the operation of which gave rise to the violation;
(c)
At the site of the work with respect to which the violation
occurred; or
(d)
At the place at which the violation occurred.
(2)
Service of a notice of violation may be made by certified mail, return
receipt requested.
(3)
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.
E.
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.
F.
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.
G.
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.
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.
B.
Pleas by mail shall be made in the following manner:
C.
A plea of guilty shall be accompanied by a check or money order (not
cash) for the payment in full of the scheduled fine.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
I.
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.
J.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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.
C.
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.
D.
For good cause shown, the administrative appeals panel may permit
the filing of a notice of appeal after the thirty-day period.
E.
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.
F.
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.
