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This entry was published on 2014-09-22
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SECTION 258-E
Violations; remedies
Agriculture & Markets (AGM) CHAPTER 69, ARTICLE 21
§ 258-e. Violations; remedies. 1. The commissioner may institute such
action at law or in equity as may appear necessary to enforce compliance
with any provision of the statutes, rules and orders committed to his
administration, and in addition to any other remedy under article three
of this chapter or otherwise may apply for relief by injunction if
necessary to protect the public interest without being compelled to
allege or prove that an adequate remedy at law does not exist. Such
application may be made to the supreme court in any district or county
as provided in the civil practice law and rules, or to the supreme court
in the third judicial district.

2. In addition to remedies provided by subdivsion one of this section;

Whenever the commissioner has reason to believe that any person has
been or is engaged in conduct which violates any provision of this
article or of any regulation promulgated thereunder he may issue a
complaint specifying the charges and giving reasonable notice of a
hearing thereon.

Whenever the commissioner has reason to believe that any milk dealer,
whether licensed or subject to license under this article, has been or
is engaging in any conduct for which a license may be declined or
revoked pursuant to section two hundred fifty-eight-c, the commissioner
may issue a complaint specifying the charges and giving reasonable
notice of a hearing thereon.

The person so complained of shall appear and show cause why an order
should not be entered by the commissioner requiring such person to cease
and desist from the conduct charged, or to perform those acts which will
constitute a discontinuance of the conduct charged. After due notice and
opportunity of hearing or after default of such person to appear and
proceed, if the commissioner shall find such person to have violated any
provision of this article or any regulation promulgated thereunder or to
have engaged in conduct for which a license may be declined or revoked
pursuant to section two hundred fifty-eight-c, he shall enter an order
requiring such person to cease and desist from the acts, practices or
omissions so found or to perform acts as aforesaid, and imposing such
civil penalty as he deems appropriate within the limits of subdivision
four.

3. The order of the commissioner issued pursuant to subdivision two of
this section shall be final subject to review proceedings under
subdivision five of this section, and shall not be stayed by any court
except as provided in such subdivision five. Upon failure of such person
to obtain a stay as herein provided, the commissioner may apply to the
supreme court of Albany county for an order directing compliance, and if
such order is issued, any failure to obey such compliance order may be
punished as a contempt of court.

4. Any civil penalty imposed by an order issued pursuant to
subdivision two of this section shall be in an amount not less than one
hundred dollars, or more than one thousand dollars for each violation of
this article or any regulation promulgated thereunder. In determining
the amount of any penalty to be assessed under this subdivision, the
commissioner shall consider, but not be limited to consideration of: (i)
the seriousness of the violation for which the penalty is to be imposed
and (ii) the nature and extent of any previous violations for which
penalties have been assessed against the person. Each day's violation
may, in the discretion of the commissioner, be deemed to constitute a
separate offense. If, after the expiration of the thirty day review
period prescribed by subdivisions three and five of this section, such
order has not been stayed by the supreme court in a proceeding for
judicial review thereof, the commissioner may file with the clerk of any
county the original or a certified copy of the order directing payment
of a civil penalty, and thereupon the clerk shall enter in the judgment
docket, in the column for judgment debtors, the name of the person
against whom the penalty was assessed by such order, and in appropriate
columns the amount of such person's liability for such penalty, together
with interests and costs, and the date that such order is filed. Upon
such filing, the amount of the penalty so docketed shall become a lien
upon and bind the real and personal property of the person against whom
it is issued in the same manner as a judgment duly docketed in the
office of such clerk, and the commissioner shall have the same remedies
to enforce such liability as if a judgment in a court of record had been
recovered against such person.

5. Any person aggrieved by final order of the commissioner made
pursuant to this section may within thirty days after service of such
order upon him, institute a proceeding for a review thereof pursuant to
article seventy-eight of the civil practice law and rules; provided,
however, that no stay shall be issued, unless applied for within seven
days after the effective date and unless the applicant makes a clear and
convincing showing of present, substantial and irreparable injury,
clearly over-balancing the public interest in immediate compliance which
is hereby declared as the policy of this act.