[Adopted 9-11-1987 by L.L. No. 34-1987 (Ch. 346 of the 1985
Code)]
[Amended 10-23-1990 by L.L. No. 37-1990]
As used in this article, the following terms shall have the
meanings indicated:
The Commissioner of the Suffolk County Department of Consumer
Affairs.
The Suffolk County Department of Consumer Affairs.
Excluding work in the electrical and plumbing fields as defined by Chapter 563, Licensed Occupations, Article XI, Electricians and Plumbers, § 563-126, of the Suffolk County Code, any repair, remodeling, alteration, conversion, modernization, improvement or addition to residential property, and includes but is not limited to painting of residential structures, carpentry, fencing, driveways, exterminating, flooring, ductwork for heating, ventilating and air-conditioning systems, masonry, roofing, siding, swimming pools, and waterproofing, as well as other improvements to structures or upon land which is part of residential property, including landscaping and arboriculture, which as used herein shall mean tree sprayers, tree pruners, tree stump removers and all other tree services; but this definition shall not include the construction of a new home or work done by a contractor in compliance with a guaranty of completion on new residential property or the sale of goods by a seller who neither arranges to perform nor performs, directly or indirectly, any work or labor in connection with the installation of or application of the goods or improvements to residences owned by or controlled by any government subdivision.
[Amended 12-15-1998 by L.L. No. 2-1999; 9-15-2011 by L.L. No. 49-2011]
A person who engages in home improvement contracting upon
residential property.
A vehicle, and the tools of the trade contained therein,
the use of which contributed directly and materially to the commission
of an offense as described in this article.
[Added 8-4-2004 by L.L. No. 27-2004]
A complaint based upon a home improvement contract, filed
by a consumer within six years of the making of such contract.
Any individual who negotiates or offers to negotiate a contract
for a home improvement contractor with an owner or solicits or otherwise
endeavors to procure a contract from any owner on behalf of a home
improvement contractor, whether or not such an individual is an employee
of the home improvement contractor.
A.
The Suffolk County Home Improvement Contractor Restitution Fund is
hereby created, hereinafter referred to as the "fund."
C.
The Suffolk County Comptroller is hereby authorized, empowered and
directed to deposit such funds as may be collected to the fund in
a separate account. All proceeds and earnings of such investments
shall be retained in the fund and shall be utilized solely and exclusively
for the purpose of that account.
[Amended 9-15-2011 by L.L. No. 49-2011; 6-17-2014 by L.L. No. 32-2014]
D.
The proceeds of the fund shall be used for the sole and exclusive
purpose of compensating consumers who obtain judgments against home
improvement contractors that cannot be collected on for actual, tangible
monetary losses incurred as a direct result of conduct by such licensed
contractors as limited by subsequent sections of this article.
A.
The Commissioner is hereby authorized and empowered to approve and
release payment from the fund in an amount not to exceed $5,000 for
any one claimant upon compliance with either set of the following
conditions:
[Amended 9-26-1989 by L.L. No. 36-1989; 10-23-1990 by L.L. No.
37-1990]
(1)
Generally.
(a)
The claimant files a pertinent complaint against a home improvement
contractor with the Suffolk County Department of Consumer Affairs
subsequent to December 31, 1987. The home improvement contractor must
have been licensed by the Department on the date the claimant entered
into the contract that is the basis for the complaint;
(b)
The claimant provides the Commissioner with a certified copy
of final judgment of a court of competent jurisdiction or a final
award in arbitration, with all rights of appeal exhausted, in which
the court or arbitrator has expressly found on the merits that the
claimant is entitled to monetary relief and has made a finding as
to the dollar value of any actual loss; and
(c)
The Suffolk County Sheriff, or the Sheriff or equivalent officer
of any county in New York State in which a judgment was sought to
be enforced, certifies in writing to the Commissioner that his office
has exhausted all remedies in attempting to enforce the judgment and
that either the full amount or a portion thereof remains unpaid.
(2)
Contractors in bankruptcy proceedings.
(a)
The claimant files a pertinent complaint against the licensed
home improvement contractor with the Suffolk County Department of
Consumer Affairs subsequent to December 31, 1987. The home improvement
contractor must have been licensed by the Department on the date the
claimant entered into the contract that is the basis for the complaint;
and
(b)
The claimant provides the Commissioner with a certified copy
of the final disposition of the bankrupt's estate (whether under the
bankruptcy or reorganization provisions of the Bankruptcy Code), which
includes what amount was owed to claimant and the amount paid to such
claimant, or the claimant provides the Commissioner with proof that
the home improvement contractor is the subject of bankruptcy or reorganization
proceedings pursuant to the Bankruptcy Code, that the claimant has
filed a claim therein and what the amount of the claim is. Claimant's
recovery from the fund under these circumstances is subject to the
discretion of the Commissioner, and under no circumstances may the
claimant's aggregate recovery exceed $5,000. In the event that the
claimant is asking for recovery where a bankruptcy or reorganization
proceeding is still pending, then any recovery from the restitution
fund shall not exceed the lesser of the amount of the claimant's
claim in the proceeding, less $900, or the amount of $4,100.
B.
Compensation paid from the fund shall be equivalent to the precise
amount of monetary damages so allocated to actual tangible monetary
losses resulting directly from nonperformance by a home improvement
contractor, partial performance or performance in an unworkmanlike
manner subject to the above limitation of $5,000 per claimant. No
compensation may be approved or released by the Commissioner for consequential,
personal injury or punitive damages; for attorney fees; for court
costs; for interest; or for intangible costs such as loss of time
or loss of income.
C.
If, at any time, the money deposited in the fund is insufficient
to satisfy any approved claim or portion thereof, the Commissioner,
when sufficient money has been deposited in the fund, shall satisfy
the unpaid claims or portions thereof, in the order that the claims
were originally filed with the Commissioner.
D.
A claim may not be brought against the fund after two years from
the date that the pertinent judgment or arbitration award against
the home improvement contractor has been filed with the office of
the County Clerk.
A.
The pendency of a claim against the fund shall not limit the authority
of the Commissioner to take any disciplinary action against any licensee,
including a subcontractor or salesman, nor shall the repayment in
full by a licensed home improvement contractor of the amount paid
from the fund on that contractor licensee's account, by itself,
nullify or modify the effect of any disciplinary proceedings against
any licensee.
B.
No home improvement contracting license or license renewal shall be issued to any corporation or individual against whom such a judgment is outstanding and for which a claim for restitution has been made against the fund in connection therewith nor shall any such license be issued to any officer, official or director of such a corporation pending payment of said judgment or compliance with Subsection C of this section. This subsection shall not apply to any person who served solely as a salesman of such a corporation.
C.
Any home improvement contractor whose actions have resulted in a payment from the fund on its account shall not be issued a license or license renewal under Chapter 563 of the Suffolk County Code unless and until the home improvement contractor has paid to the fund the full amount of any prior payments made by the fund as a result of claims against such contractor under this article. These payments shall be in addition to the fee of $100 contained in § 517-2B of this article. In the case of a corporate home improvement contractor, no such license shall be issued to any officer, official or director of such corporation unless and until the fund has been reimbursed for the full above-described amount.
[Amended 9-15-2011 by L.L. No. 49-2011]
[Added 8-4-2004 by L.L. No. 27-2004]
A.
Warrantless seizures.
(1)
Any vehicle, and any tools of the trade contained therein, which
constitutes an instrumentality of an offense may be seized by any
peace officer, acting pursuant to his or her special duties, or police
officer, upon probable cause to believe that an offense, as defined
in this article, has been committed, and may be forfeited as hereinafter
provided. Probable cause is deemed to exist if a complaint is investigated
by the Department of Consumer Affairs and is determined to be substantiated.
(2)
Notice of seizure.
(a)
The seizing agency shall send notification of the seizure of
the property to all titled owners and registrants on file with the
New York State Department of Motor Vehicles by certified mail, return
receipt requested, within five business days of the seizure. Such
notification shall inform the recipient that there will be a hearing
promptly scheduled before a neutral magistrate to determine whether
probable cause existed for the warrantless seizure of the defendant's
property, whether the County is likely to succeed on the merits on
the forfeiture action, whether retention is necessary to preserve
the property from destruction or sale during the pendency of the forfeiture
proceeding, and whether any other measures would better protect the
County's interest during the proceedings, including, but not
limited to, issuance of a restraining order prohibiting the sale,
transfer, or loss of the property with imposition(s) of appropriate
penalties for violation of said restraining order; taking of a bond;
and/or use of an interlock device.
(b)
When a hearing is held, the neutral magistrate shall review the documents supporting the seizure and any other relevant documents and take any testimony to determine whether the seizing agency has sustained its burden of proof as set forth in Subsection A(2)(a) of this section. If the seizing agency has sustained its burden of proof, the neutral magistrate shall authorize the continued retention of the property by the seizing agency pending a judicial determination of any civil forfeiture action. Nothing herein shall be construed to preclude a party with a legal interest in the seized property from commencing an action or proceeding in a court of competent jurisdiction for its return.
(3)
Any action for forfeiture under Subsection A(1) of this section shall be commenced, in the manner prescribed by the New York Civil Practice Law and Rules § 304, within 180 days after the seizure. Failure to commence such an action within 180 days after the seizure shall result in the immediate return of the property to its lawful owners as of the time of the seizure.
B.
Civil authority.
(1)
A civil action shall be commenced by the County Attorney, or her or his designee, against a defendant to forfeit seized property which constitutes the instrumentality of an offense or to recover a money judgment in an amount equivalent in value to the property which constitutes the instrumentality of an offense, if it can be demonstrated that the property was seized in connection with an offense by an individual who has been found by the Department to be in violation of Article II of Chapter 563 of the Suffolk County Code at least once before within a period of 10 years prior to the offense at issue, except that:
(a)
No property shall be forfeited under the provisions of this
subsection by reason of any act or omission established by the owner
thereof to have been committed or omitted by any person other than
the owner while the subject property was unlawfully in the possession
of a person other than the owner.
(2)
All actions commenced under this section shall be governed by the
procedures enumerated in Article 13-A of the New York Civil Practice
Law and Rules, where not specifically outlined herein.
(3)
No property shall be forfeited under this section unless the County
Attorney, or her or his designee, produces clear and convincing evidence
that a non-home-improvement contractor defendant engaged in affirmative
acts which aided, abetted or facilitated the conduct of the defendant.
The non-home-improvement contractor defendant must take all prudent
steps to prevent the illegal use of his or her property, and willful
disregard by the non-home-improvement contractor defendant of the
acts giving rise to forfeiture shall not constitute a defense to such
forfeiture.
(4)
Any action to forfeit seized property under Subsection B(1) of this section shall be commenced within 180 days after the seizure when the property has first been seized under Subsection A of this section, and said action shall be civil, remedial, and in rem in nature and shall not be deemed to be a penalty or criminal forfeiture for any purpose. An action under this section shall not be deemed a criminal proceeding of any type. The action shall be commenced in the manner prescribed by the New York Civil Practice Law and Rules § 304. Potential claimants to the seized asset shall be served with a summons and notice or summons and verified complaint. No property shall be forfeited without service of notice upon potential claimants to the seized asset and the opportunity for a prompt post-seizure hearing given prior to such forfeiture.
(5)
In order to establish its case in any action commenced under this
chapter, the County shall demonstrate, by clear and convincing evidence,
that the property in question is subject to forfeiture at the time
of the commission of the offense, as defined in this article, precipitated
the seizure, or the commencement of an action for the seizure of the
property, without regard to the final determination of any actions
brought against the individual for such offense. The non-home-improvement
contractor defendant shall then have the burden of proving a lack
of knowledge or lack of consent on behalf of said non-home-improvement
contractor defendant sufficient to constitute a defense to such forfeiture.
(6)
If, after a seizure of property has been made under Subsection A of this section, it is determined that the non-home-improvement contractor defendant whose property which constitutes an instrumentality of an offense, or the individual whose actions precipitated the seizure, has not been previously found to be in violation of Article II of Chapter 563 of the Suffolk County Code by the Department in a ten-year period, then the property which constitutes an instrumentality of an offense so seized shall immediately be returned to its lawful owner as of the time of seizure.
(7)
All property seized pursuant to this section is subject to reasonable
and customary towing, maintenance and daily storage fees as may be
established by the Suffolk County Police Commissioner. Such fees shall
be payable to the seizing agent prior to the release of said property.
C.
Disposition of forfeited property and proceeds.
(1)
Whenever property is forfeited under this section, the County Attorney,
or her or his designee, shall sell such property which is not required
to be destroyed by law and which is not harmful to the public.
(2)
Any and all proceeds realized, collected or paid pursuant to the
provisions of this section shall be transferred to the Home Improvement
Contractors Restitution Fund.
D.
Discretionary action.
(1)
Nothing contained in this section shall require the County Attorney,
or her or his designee, to commence a forfeiture action when, in her
or his discretion, it is in the best interests of justice not to commence
such an action.
(2)
Nothing contained in this section shall require a court to order
a forfeiture when it determines, in its discretion, that it is in
the interests of justice not to do so.
E.
Rules and regulations. The County Attorney shall issue and promulgate
such rules and regulations as shall be necessary to implement the
provisions of this section.
