There is hereby created an administrative tribunal to be known
as the "Board of Administrative Adjudication" which will have jurisdiction
to hear and determine charges of municipal code violations that affect
the quality of life of the residents of Yonkers or may constitute
a threat or danger to the public health, safety or welfare. The Board
shall not hear or determine charges resulting from violations of Part
VI of the Yonkers City Code entitled "Fire and Buildings" or any violation
which includes imprisonment as a penalty, such as any unclassified
Yonkers City Code misdemeanor(s).
The head of such Board of Administrative Adjudication shall
be the Chief ALJ who shall have all the powers of an administrative
law judge conferred by § 381 of Article 14-BB of the eneral
Municipal Law and shall perform all duties specified thereunder.
A.
The Chief ALJ shall appoint up to nine (9) Deputy ALJs, as necessary,
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 Chief ALJ.
B.
An ALJ 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.
ALJs shall ensure that all hearings are conducted in a fair and impartial
manner.
The Board of Administrative Adjudication shall have the following
functions, powers and duties:
A.
To accept pleas and to hear and determine charges of code and statutory
violations that affect the quality of life of the residents of Yonkers
or constitute a threat or danger to the public health, safety or welfare.
Further, the Board may conduct hearings on diverse matters, including,
without limitation, excessive avoidable alarms and/or any other fee
disputes that the Chief ALJ deems appropriate.
B.
To provide for penalties other than imprisonment for code or statutory violations in accordance with § 1-21 of the City Code; provided, however, that monetary penalties shall not exceed the maximum amount allowed by the City Code.
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 Board.
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 Board 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 Board 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 have at least one administrative appeals panel consisting of three
ALJs that will hear appeals from a determination made by any ALJ.
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 basis 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 or a facsimile
thereof shall be filed and retained by the Board 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 may be made by first-class mail.
(4)
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 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 Board 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 Board. 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. Service completed by first-class mail shall be presumed complete unless returned for any reason.
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 thirty (30) 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 Board shall not reject any plea entered by mail
if the postmarked date on the envelope is within thirty (30) days
from the date service of the notice of violation was complete. Failure
of the respondent to answer within thirty (30) 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 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 Board 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 Board for the violation charged.
H.
Any final order of the Board imposing a civil penalty, whether the
adjudication was had by hearing or upon default or otherwise, shall
constitute a judgment rendered by the Board 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 Chief ALJ 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 Board
must have notified the respondent by first-class mail in such form
as the Chief ALJ may require of the default decision and order and
the penalty imposed, that a judgment 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 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 Yonkers at such place as
the Chief ALJ shall designate from time to time. Hearings shall be
held at least twice per month.
B.
All hearings 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 Chief ALJ.
C.
Every hearing for the adjudication of a charge of a violation shall
be held before a Deputy ALJ or the Chief ALJ. 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
ALJ 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 Chief ALJ shall determine.
A transcript of such record shall be supplied to a respondent upon
application and upon the payment of a fee. The ALJ 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 Board may make application
to a court of competent jurisdiction for an order requiring such appearance,
testimony or production of evidence.
F.
The Board 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
Chief ALJ shall determine.
A.
The ALJ shall make final findings of fact and a final determination
or order. All findings of fact, decisions, determinations and orders
shall be written and rendered in an expeditious manner.
B.
A final determination or order of the Board 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 County of Westchester
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.
D.
Any unpaid judgment related to a violation on a property in the City
of Yonkers shall become a lien on said property subject to the collection
as a tax thereon.
A.
There shall be one or more administrative appeal panels within the
Bureau. Each panel shall consist of three ALJs. In no event shall
the ALJ from whom such appeal of a decision, determination or order
is taken hear and determine that particular appeal. The appeals panel
shall have the power to review the record and the findings of the
ALJ and may reverse, modify or remand any such decision, determination
or order appealed therefrom. ALJs serving on the appeals panel may
hear and conduct administrative hearings but shall serve primarily
as administrative appeal panel members.
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 ALJ 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 panel 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 or officer of the City. Upon a showing of undue
hardship or where justice may require, the ALJ who decided the case
or the 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.
A written determination of the appeals 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.
