NY State Senate Bill 2009-S2305

Senate Bill S2305

2009-2010 Legislative Session

Authorizes the NYC department of consumer affairs to adjudicate violations of the laws that it enforces pursuant to rules promulgated by its commissioner

download bill text pdf

Archive: Last Bill Status - In Senate Committee Cities Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Apr 13, 2010	committee discharged and committed to cities
Jan 06, 2010	referred to local government
Feb 17, 2009	referred to local government

2009-S2305 (ACTIVE) - Details

See Assembly Version of this Bill:: A4119
Current Committee:: Senate Cities
Law Section:: County Law
Laws Affected:: Amd §918, County L; add §2203-a, NYC Chart; amd §20-701, NYC Ad Cd
Versions Introduced in Other Legislative Sessions:: 2011-2012: A3992
2013-2014: A5257

2009-S2305 (ACTIVE) - Summary

Authorizes the NYC department of consumer affairs to adjudicate violations of the laws that it enforces pursuant to rules promulgated by its commissioner; makes procedural provisions for service of notice of violation and entry of judgments; limits penalties; provides for the county clerks to docket the department's judgments in separate volumes.

2009-S2305 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2305

 TITLE OF BILL :
An act to amend the county law, the New York city charter and the
administrative code of the city of New York, in relation to the
adjudication of violations of laws enforced by the New York city
department of consumer affairs


 PURPOSE :
The bill would amend the New York City Charter by adding a new Section
2203-a which would authorize the Commissioner of Consumer Affairs to:
(1) conduct administrative hearings to adjudicate violations of any
laws or rules which are within DCA's enforcement jurisdiction; (2)
specify the content and method of service of notices of violation that
are sufficient to initiate such hearings; (3) impose civil penalties
of up to $500 per violation (except to the extent that penalties are
otherwise specifically provided); and (4) authorize the Commissioner
to docket final orders as if they were civil money judgments and
specify the notice to be provided prior to docketing default
decisions. The bill would also amend the County Law to make conforming
changes to state law relating to the docketing of final orders.
Lastly, the bill amends the Administrative Code of the City of New
York, to include as a "deceptive practice", punishable by a monetary
fine, the failure by proprietors or owners of any shop, store or other
establishment or service to publicly reveal and display in English,

the proper name of their place of business. Under current law (Gen.
Bus. Law .131) the failure to publicly reveal and display a sign in
English is punishable by a misdemeanor.

 JUSTIFICATION :
The New York City Department of Consumer Affairs ("DCA") is
responsible for enforcing various state and local consumer protection
laws, including the New York City License Enforcement Law; Article 16
of the New York State Agriculture and Markets Law; and the New York
City Consumer Protection Law. Any licensee charged with violating any
of these laws is accorded due notice and an opportunity to be heard
and to be represented by counsel at an administrative hearing held at
DCA.

While businesses that do not require licenses are given an opportunity
to resolve violations of laws within DCA's enforcement jurisdiction
through informal settlement discussions, they are not afforded an
actual hearing before an impartial fact finder. When DCA opts not to
pursue a court action on unresolved violations, a business has no way
to clear itself of an outstanding violation, which becomes a matter of
public record.

By authorizing DCA to hold administrative hearings on all violations
of laws it enforces, this bill would afford respondents and
opportunity to resolve disputed violations before an impartial
tribunal, This administrative tribunal would also make it possible to
resolve such disputes more quickly and efficiently than through the
current, protracted state court proceedings that must otherwise be
used to enforce such laws. Authorizing DCA to exercise its hearing
authority in all cases involving violations of laws within its
jurisdiction would also level the playing field for all businesses
subject to those laws. Doing so also permits DCA of Consumer Affairs
to enforce its laws more effectively and at a reduced cost to both
businesses and the City.

Finally, this legislation would also strengthen and streamline DCA's
efforts to collect the fines that have been duly assessed against
violators. It would do something by authorizing DCA to docket and
enforce its decisions like court judgments without having to engage in
further time consuming and costly legal proceedings. This docketing
authority would also create a more level playing field for licensed
and unlicensed business regarding the collection of fines for all
violation of laws enforces by DCA. DCA now can refuse to renew, and in
some cases may revoke, the licenses of businesses that fail to pay
fines that have been imposed. The license, for all intents and
purposes, thereby confers collection leverage against licensees. Since
that collection leverage is unavailable with respect to unlicensed
businesses, they gain an advantage by avoiding payment.  Licensed
businesses do not have such an advantage, Unlicensed businesses who
have violated the law should not be able to avoid punishment merely
because the extra costs incurred to collect the penalty are too
burdensome to make it fiscally prudent to do so.

DCA estimates that based on a review of uncollected fines that have
been assessed over the last three fiscal years, the authority to
docket decisions would have enabled DCA to have collected $1,094,464
in fines assessed in those years.

 LEGISLATIVE HISTORY :
S.64 of 2007-08; S.321 of 2005-06; S.50 of 2003-04; S.7319-A of
2001-02.

 FISCAL IMPLICATIONS :
None to the State.

 EFFECTIVE DATE :
Immediately.

2009-S2305 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2305

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 17, 2009
                               ___________

Introduced  by  Sen. PADAVAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Local Government

AN ACT to amend the county law, the New York city charter and the admin-
  istrative code of the city of New York, in  relation  to  the  adjudi-
  cation  of violations of laws enforced by the New York city department
  of consumer affairs

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  4 of section 918 of the county law, as sepa-
rately amended by chapters 419 and 473 of the laws of 1988,  is  amended
to read as follows:
  4. Any other laws to the contrary notwithstanding, the county clerk in
each  of  the  counties  within  the  city of New York is authorized and
empowered to maintain separate judgment docket  volumes  containing  the
printed transcript or transcripts, in strict alphabetical order of judg-
ment  made,  entered, and docketed in the civil court of the city of New
York against individuals, corporations, and other entities on behalf  of
the parking violations bureau, the environmental control board, the taxi
and  limousine  commission,  THE DEPARTMENT OF CONSUMER AFFAIRS, and the
commissioner of jurors of the city of New York.  These  volumes  may  be
maintained  in  the  form of computer print outs which shall contain the
date of judgment, the  name  and  address  of  the  judgment  debtor  or
debtors,  the  amount  of  the judgment, and other information which the
county clerk may deem necessary to sufficiently describe the parties  to
the  action  or  proceeding  or nature or the manner of the entry of the
judgment. Provided, however, with respect to judgments on behalf of  the
parking  violations  bureau,  the  county  clerk  may,  in  his  OR  HER
discretion, in lieu of such volumes, maintain the aforementioned data in
a micrographic or computer retrievable format.   With respect  to  judg-
ments  on behalf of the parking violations bureau, such volumes or other
format shall be maintained pursuant to this subdivision for  only  those

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05041-01-9

S. 2305                             2

individuals, corporations, and other entities having vehicles registered
in the counties within the city of New York.
  S  2.  The  New  York  city charter is amended by adding a new section
2203-a to read as follows:
  S 2203-A. CIVIL PENALTY ADJUDICATION. (A) THE DEPARTMENT SHALL CONDUCT
PROCEEDINGS FOR THE ADJUDICATION OF VIOLATIONS OF THE LAWS AND RULES THE
ENFORCEMENT OF WHICH ARE  WITHIN  THE  JURISDICTION  OF  THE  DEPARTMENT
PURSUANT  TO  THE  CHARTER,  THE  ADMINISTRATIVE CODE, OR ANY OTHER LAW,
GENERAL, SPECIAL, OR LOCAL AND SHALL HAVE THE POWER TO RENDER  DECISIONS
AND  ORDERS AND TO IMPOSE CIVIL PENALTIES FOR SUCH VIOLATIONS. EXCEPT TO
THE EXTENT THAT DOLLAR LIMITS ARE OTHERWISE SPECIFICALLY PROVIDED,  SUCH
CIVIL   PENALTIES  SHALL  NOT  EXCEED  FIVE  HUNDRED  DOLLARS  FOR  EACH
VIOLATION.
  (B) SUCH PROCEEDINGS  SHALL  BE  CONDUCTED  IN  ACCORDANCE  WITH  THIS
SECTION AND WITH RULES PROMULGATED BY THE COMMISSIONER.
  (C) ALL SUCH PROCEEDINGS SHALL BE COMMENCED BY THE SERVICE OF A NOTICE
OF  VIOLATION.  THE COMMISSIONER SHALL PRESCRIBE THE FORM AND WORDING OF
NOTICES OF VIOLATION. THE NOTICE OF  VIOLATION  OR  COPY  THEREOF,  WHEN
FILLED  IN  AND SERVED, SHALL CONSTITUTE NOTICE OF THE VIOLATION CHARGED
AND, IF SWORN TO OR AFFIRMED, SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS
CONTAINED THEREIN.   IN ADDITION TO SERVING THE  NOTICE  ON  THE  PERSON
BEING CHARGED, WHERE WRITTEN AUTHORIZATION IS FILED WITH THE DEPARTMENT,
THE DEPARTMENT SHALL DELIVER BY FIRST CLASS MAIL A COPY OF THE NOTICE TO
THE  CORPORATE  HEADQUARTERS  OR  WHOLESALE SUPPLIER OF THE PERSON BEING
SERVED. SUCH NOTICE BY MAIL SHALL PROVIDE A RESPONDENT WITH THE  MINIMUM
PERIOD  OF  TIME  TO  RESPOND  PROVIDED  FOR  IN SUBDIVISION (E) OF THIS
SECTION.
  (D) 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. THE
ORIGINAL OR A COPY OF  THE  NOTICE  OF  VIOLATION  SHALL  BE  FILED  AND
RETAINED  BY  THE  DEPARTMENT  AND  SHALL BE DEEMED A RECORD KEPT IN THE
ORDINARY COURSE OF BUSINESS.
  (E) WHERE A RESPONDENT HAS FAILED TO PLEAD WITHIN THE TIME ALLOWED  BY
THE  RULES  OF  THE COMMISSIONER OR HAS FAILED TO APPEAR ON A DESIGNATED
HEARING DATE OR A SUBSEQUENT DATE FOLLOWING AN ADJOURNMENT, SUCH FAILURE
TO PLEAD OR APPEAR 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 IN THE MAXIMUM AMOUNT PRESCRIBED UNDER LAW FOR
THE VIOLATION CHARGED.
  (F) ANY FINAL ORDER IMPOSING A CIVIL PENALTY, WHETHER THE ADJUDICATION
WAS HAD BY HEARING OR UPON DEFAULT  OR  OTHERWISE,  SHALL  CONSTITUTE  A
JUDGMENT  THAT MAY BE ENTERED IN THE CIVIL COURT OF THE CITY OF NEW YORK
OR ANY OTHER PLACE PROVIDED FOR THE ENTRY OF CIVIL JUDGMENTS WITHIN  THE
STATE,  AND MAY BE ENFORCED WITHOUT COURT PROCEEDINGS IN THE SAME MANNER
AS  THE  ENFORCEMENT  OF  MONEY  JUDGMENTS  ENTERED  IN  CIVIL  ACTIONS;
PROVIDED,  HOWEVER, THAT NO SUCH JUDGMENT SHALL BE ENTERED WHICH EXCEEDS
THE SUM OF TWENTY-FIVE THOUSAND DOLLARS FOR EACH RESPONDENT.
  (G) NOTWITHSTANDING THE FOREGOING PROVISION, BEFORE A  JUDGMENT  BASED
UPON  A DEFAULT MAY BE SO ENTERED, THE DEPARTMENT MUST HAVE NOTIFIED THE
RESPONDENT BY FIRST CLASS MAIL IN SUCH  FORM  AS  THE  COMMISSIONER  MAY
DIRECT:  (I)  OF THE DEFAULT DECISION AND ORDER AND THE PENALTY IMPOSED;
(II) THAT A JUDGMENT WILL BE ENTERED IN THE CIVIL COURT OF THE  CITY  OF

S. 2305                             3

NEW  YORK  OR  ANY OTHER PLACE PROVIDED FOR THE ENTRY OF CIVIL JUDGMENTS
WITHIN THE STATE OF NEW YORK; AND (III) 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 COMMISSIONER WITHIN THIRTY DAYS OF THE MAILING OF SUCH NOTICE.    IN
ADDITION  TO  NOTIFYING  THE  RESPONDENT, WHERE WRITTEN AUTHORIZATION IS
FILED WITH THE DEPARTMENT, THE DEPARTMENT SHALL DELIVER BY  FIRST  CLASS
MAIL  A  COPY  OF  THE NOTICE TO THE CORPORATE HEADQUARTERS OR WHOLESALE
SUPPLIER OF THE PERSON BEING NOTIFIED. SUCH NOTICE BY MAIL SHALL PROVIDE
THE MINIMUM PERIOD OF TIME TO RESPOND AS SET FORTH IN THIS SUBDIVISION.
  (H) A JUDGMENT ENTERED PURSUANT TO SUBDIVISION  (F)  OF  THIS  SECTION
SHALL REMAIN IN FULL FORCE AND EFFECT FOR EIGHT YEARS.
  (I)  THE DEPARTMENT SHALL NOT ENTER ANY FINAL DECISION OR ORDER PURSU-
ANT TO THE PROVISIONS OF SUBDIVISION (F)  OF  THIS  SECTION  UNLESS  THE
NOTICE  OF  VIOLATION  SHALL  HAVE  BEEN SERVED IN THE SAME MANNER AS IS
PRESCRIBED FOR SERVICE OF PROCESS BY ARTICLE THREE OF THE CIVIL PRACTICE
LAW AND RULES OR ARTICLE THREE OF THE BUSINESS  CORPORATION  LAW  OR  AS
PROVIDED IN SUBDIVISION (J) OF THIS SECTION.
  (J)  (1)  SERVICE  OF  A NOTICE OF VIOLATION MAY BE MADE BY DELIVERING
SUCH NOTICE TO A PERSON EMPLOYED BY THE RESPONDENT ON OR  IN  CONNECTION
WITH  THE  PREMISES WHERE THE VIOLATION OCCURRED OR TO A PERSON EMPLOYED
BY THE RESPONDENT AT THE  PREMISES  AT  WHICH  THE  RESPONDENT  ACTUALLY
CONDUCTS THE BUSINESS THE OPERATION OF WHICH GAVE RISE TO THE VIOLATION.
  (2)  SUCH  NOTICE  MAY  ONLY BE DELIVERED PURSUANT TO PARAGRAPH ONE OF
THIS SUBDIVISION WHERE A REASONABLE ATTEMPT HAS  BEEN  MADE  TO  DELIVER
SUCH  NOTICE  TO A PERSON IN SUCH PREMISES UPON WHOM SERVICE MAY BE MADE
AS PROVIDED FOR BY ARTICLE THREE OF THE CIVIL PRACTICE LAW AND RULES  OR
ARTICLE THREE OF THE BUSINESS CORPORATION LAW.
  (3)  WHEN  A  COPY OF SUCH NOTICE HAS BEEN DELIVERED PURSUANT TO PARA-
GRAPH ONE OF THIS SUBDIVISION, A COPY SHALL BE MAILED TO THE  RESPONDENT
AT  SUCH  RESPONDENT'S LAST KNOWN RESIDENCE OR BUSINESS ADDRESS OR TO AN
ADDRESS CONTAINED IN THE FILES OF THE DEPARTMENT COMPILED AND MAINTAINED
FOR THE PURPOSE OF THE ENFORCEMENT OF THE PROVISIONS OF THE  CHARTER  OR
ADMINISTRATIVE CODE OR OTHER LAW OVER WHICH THE DEPARTMENT HAS JURISDIC-
TION.
  (4)  PROOF OF SERVICE MADE PURSUANT TO THIS SUBDIVISION SHALL BE FILED
WITH THE COMMISSIONER WITHIN  TWENTY  DAYS  OF  SERVICE  IN  THE  MANNER
PRESCRIBED; SERVICE SHALL BE COMPLETE TEN DAYS AFTER SUCH FILING.
  (K)  THE  REMEDIES  AND PENALTIES PROVIDED IN THIS SECTION SHALL BE IN
ADDITION TO ANY REMEDIES OR PENALTIES  PROVIDED  UNDER  ANY  OTHER  LAW,
INCLUDING,   BUT   NOT   LIMITED  TO,  CIVIL  OR  CRIMINAL  ACTIONS  AND
PROCEEDINGS.
  S 3. Subdivision a of section 20-701 of the administrative code of the
city of New York is amended to read as follows:
  a. Deceptive  trade  practice.  Any  false,  falsely  disparaging,  or
misleading oral or written statement, visual description or other repre-
sentation of any kind made in connection with the sale, lease, rental or
loan or in connection with the offering for sale, lease, rental, or loan
of consumer goods or services, or in the extension of consumer credit or
in the collection of consumer debts, which has the capacity, tendency or
effect  of  deceiving or misleading consumers. Deceptive trade practices
include but are not  limited  to:  (1)  representations  that  goods  or
services   have  sponsorship,  approval,  accessories,  characteristics,
ingredients, uses, benefits, or quantities that they do  not  have;  the
supplier has a sponsorship, approval, status, affiliation, or connection
that  he  or  she  does  not have; goods are original or new if they are

S. 2305                             4

deteriorated, altered,  reconditioned,  reclaimed,  or  secondhand;  or,
goods or services are of a particular standard, quality, grade, style or
model,  if  they  are  of  another;  (2) the use, in any oral or written
representation,  of exaggeration, innuendo or ambiguity as to a material
fact or failure to state a material fact if such use deceives  or  tends
to  deceive; (3) disparaging the goods, services, or business of another
by false or misleading representations of material facts;  (4)  offering
goods  or services with intent not to sell them as offered; (5) offering
goods or services with intent not to supply reasonable expectable public
demand, unless the offer discloses to limitation of  quantity;  and  (6)
making  false  or  misleading  representations  of  fact  concerning the
reasons for, existence of, or amounts of price reductions, or  price  in
comparison  to  prices  of  competitors  or one's own price at a past or
future time; (7) stating that a consumer transaction  involves  consumer
rights,  remedies  or  obligations that it does not involve; (8) stating
that services, replacements or repairs are needed if they are  not;  (9)
FAILING  TO  PUBLICLY REVEAL AND DISPLAY IN ENGLISH, AS REQUIRED BY LAW,
THE TRUE NAME OF THE PROPRIETORS OR OWNERS OF ANY SHOP, STORE  OR  OTHER
ESTABLISHMENT OR SERVICE; and [(9)] (10) falsely stating the reasons for
offering or supplying goods or services at scale discount prices.
  S 4. This act shall take effect immediately.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.