ยง 6516. Civil enforcement proceedings and civil penalties. 1. Issuance
of cease and desist order. Whenever the department has reasonable cause
to believe that any person has violated any provision of section
sixty-five hundred twelve or sixty-five hundred thirteen of this
article, the department may issue and serve upon such person a notice to
cease and desist from such violation. Such cease and desist order shall
be served personally by the department. If personal service can not be
made after due diligence and such fact is certified under oath, a copy
of the order shall be made by certified mail, return receipt requested,
to the person's last known address by the department.
2. Contents of cease and desist order. The cease and desist order
shall be in writing and shall describe with particularity the nature of
the violation, including a reference of the specific provision or
provisions of law alleged to have been violated and an order to the
respondent to cease any unlawful activity. The cease and desist order
shall advise the respondent (a) of the right to contest the order by
requesting a hearing within thirty days of the service of the cease and
desist order before a hearing officer designated by the department (b)
of the right to request a stay of the cease and desist order at the time
a hearing is requested and (c) shall set forth the respondent's rights
at such a hearing pursuant to subdivision five of this section.
3. Civil penalties. Civil penalties up to five thousand dollars may be
imposed for each violation and the respondent may be ordered to make
restitution to any person who has an interest in any money or property,
either real or personal, acquired by the respondent as a result of a
violation. Whenever the department concludes that civil penalties and/or
restitution may be warranted because of the egregiousness of the
unlawful activity, it may serve, along with the cease and desist order,
a notice of a hearing on the allegations of unlawful activity and the
department's intention to order the respondent to make restitution
and/or impose a civil penalty. The notice should specify the civil
penalty sought for each violation.
4. Request for hearing. If the respondent to a cease and desist order
contests the cease and desist order, the respondent shall request a
hearing conducted by the department within thirty days of the receipt of
the cease and desist order. Such a hearing shall be scheduled, and the
requesting party notified of the date, within fifteen days of the
receipt of the request for a hearing. If the respondent requests a stay
of the cease and desist order, the hearing officer shall determine
whether the cease and desist order should be stayed in whole or in part
within five working days of the request for a stay. The respondent may
file a written answer to the cease and desist order prior to the
hearing. A stenographic record of the hearing shall be made.
5. Conduct of hearing. The evidence in support of the cease and desist
order shall be presented by an attorney for the department. The
respondent may appear personally and may be represented by counsel at
the hearing, may produce witnesses and evidence in his or her behalf at
the hearing, may cross-examine witnesses and examine evidence produced
against him or her at the hearing, and may issue subpoenas in accordance
with section three hundred four of the state administrative procedure
act. The hearing officer shall not be bound by the rules of evidence,
but his or her determination that a violation of section sixty-five
hundred twelve or sixty-five hundred thirteen of this article has
occurred shall be based on a preponderance of the evidence. A hearing
which has been initiated shall not be discontinued because of the death
or incapacity of the hearing officer. In the event of a hearing
officer's death or incapacity to serve, a new hearing officer shall be
designated by the department to continue the hearing. The new hearing
officer shall affirm in writing that he or she has read and considered
evidence and transcripts of the prior proceedings.
6. Results of hearing. The hearing officer designated by the
department shall render a written report which shall include (a)
findings of fact, (b) a determination on each violation alleged in the
cease and desist order, (c) a determination as to whether to accept,
reject, or modify any of the terms of the cease and desist order in
whole or in part, and (d) the civil penalty imposed, if any. A copy of
the hearing officer's written report shall be served upon the respondent
with a notice setting forth the respondent's rights to an administrative
appeal within ten days of the conclusion of the hearing.
7. Appeals. The decision of the hearing officer shall be final, except
that it may be appealed to a regents review committee within twenty days
of the receipt of the hearing officer's report. The initiation of an
appeal shall not in and of itself affect the validity or terms of the
cease and desist order. The regents review committee shall consist of
three members, at least one of whom shall be a regent. The review shall
be based on the transcript and the report of the hearing officer. The
respondent may appear at the meeting, and the regents review committee
may require the respondent to appear. The respondent may be represented
by counsel. The department shall notify the respondent at least ten days
before the meeting (a) of the time and place of the meeting, (b) of the
right to appear, (c) of the right to be represented by counsel, (d)
whether or not the respondent is required to appear, and (e) of such
other information as may be considered appropriate. After the meeting,
the regents review committee shall transmit a written report of its
review to the board of regents. The board of regents (i) shall consider
the transcript, the report of the hearing officer, and the report of the
regents review committee, (ii) shall decide whether the respondent has
violated each charge in the cease and desist order, (iii) shall decide
what penalties, if any, to impose as prescribed in this section, and
(iv) shall issue an order to carry out its decisions. Such decisions
shall require the affirmative vote of a majority of the members of the
board of regents. The order shall be served upon the respondent
personally or by certified mail to the respondent's last known address
and such service shall be effective as of the date of the personal
service or five days after mailing by certified mail. The decisions of
the board of regents under this section may be reviewed in a proceeding
pursuant to article seventy-eight of the civil practice law and rules
brought in the supreme court, Albany county. Such decisions shall not be
stayed or enjoined except upon application to such supreme court
pursuant to article sixty-three of the civil practice law and rules with
notice to the department and to the attorney general.
8. General enforcement of cease and desist order. In any case where
the cease and desist order is confirmed by the board of regents or where
the respondent does not request an administrative hearing within the
allotted time or does not appeal the decision of the hearing officer
within the allotted time, an action or proceeding may be filed in the
name of the state of New York seeking a restraining order, injunction,
appropriate writ, or judgment against any person who violates the terms
of the cease and desist order.
9. Special enforcement of civil monetary penalties. Provided that no
appeal is pending on the imposition of such civil penalty, in the event
such civil penalty imposed by the department remains unpaid, in whole or
in part, more than forty-five days after written demand for payment has
been sent by first class mail to the address of the respondent, a notice
of impending default judgment shall be sent by first class mail to the
respondent. The notice of impending default judgment shall advise the
respondent: (a) that a civil penalty was imposed on the respondent; (b)
the date the penalty was imposed; (c) the amount of the civil penalty;
(d) the amount of the civil penalty that remains unpaid as of the date
of the notice; (e) the violations for which the civil penalty was
imposed; and (f) that a judgment by default will be entered in the
supreme court, Albany county unless the department receives full payment
of all civil penalties due within twenty days of the date of the notice
of impending default judgment. If full payment shall not have been
received by the department within thirty days of mailing of the notice
of impending default judgment, the department shall proceed to enter
with such court a statement of the default judgment containing the
amount of the penalty or penalties remaining due and unpaid, along with
proof of mailing of the notice of impending default judgment. The filing
of such judgment shall have the full force and effect of a default
judgment duly docketed with such court pursuant to the civil practice
law and rules and shall in all respects be governed by that chapter and
may be enforced in the same manner and with the same effect as that
provided by law in respect to execution issued against property upon
judgments of a court of record. A judgment entered pursuant to this
subdivision shall remain in full force and effect for eight years
notwithstanding any other provision of law.