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Hearings Division Rules of Practice

Subchapter C - Hearings

§6-08 Proceedings before the OATH Hearings Division
§6-09 Appearances
§6-10 Remote Adjudication
§6-11 Hearing Procedures
§6-12 Evidence
§6-13 Hearing Officers
§6-14 Requests for Adjournment
§6-15 Appearances of Inspectors
§6-16 Representation
§6-17 Decisions
§6-18 Payment of Penalty

§6-08 Proceedings before the OATH Hearings Division

  1. Issuance and Filing of Summons.
    1. The petitioner must file an original or a copy of the summons, together with proof of service, with the Tribunal prior to the first scheduled hearing date. Electronic filing of the summons and proof of service is required unless the Tribunal grants an exception. Failure to timely file all proofs of service shall not divest the Tribunal of jurisdiction to proceed with a hearing or to issue a default order.
    2. Notwithstanding paragraph one of this subdivision, where property has been seized, the Tribunal may adjudicate a summons after it is served and before it is filed.
  2. Service of the Summons. There must be service of the summons.
    1. Service of a summons in the following manner will be considered sufficient:
      1. The summons may be served in person upon:
        1. the person alleged to have committed the violation,
        2. the permittee, licensee or registrant,
        3. the person who was required to hold the permit, license or to register,
        4. a member of the partnership or other group concerned,
        5. an officer of the corporation,
        6. a member of a limited liability company,
        7. a managing or general agent, or
        8. any other person of suitable age and discretion as may be appropriate, depending on the organization or character of the person, business or institution charged.
      2. Alternatively, the summons may be served by mail deposited with the U.S. Postal Service, or other mailing service, to any such person at the address of the premises that is the subject of the summons or, as may be appropriate, at the residence or business address of:
        1. the alleged violator,
        2. the individual who is listed as the permittee
        3. the individual who is listed as the permittee, licensee or applicant in the permit or license or in the application for a permit or license,
        4. the registrant listed in the registration form, or
        5. the person filing a notification of an entity's existence with the applicable governmental agency where no permit, license or registration is required.
        If the summons is served by mail, documentation of mailing will be accepted as proof of service of summons.
    2. A summons may be served pursuant to the requirements of §1049-a(d)(2) of the New York City Charter, Chapter 68 of Title 35 of the Rules of the City of New York, or as provided by the statute, rule, or other provision of law governing the violation alleged. For the purpose of serving a summons pursuant to New York City Charter §1049-a(d)(2)(a)(i) and (ii), the term "reasonable attempt" as used in New York City Charter §1049-a(d)(2)(b) may be satisfied by a single attempt to effectuate service upon the Respondent, or another person upon whom service may be made, in accordance with Article 3 of the Civil Practice Law and Rules or Article 3 of the Business Corporation Law.
    3. The Tribunal's decision may be automatically docketed in Civil Court where the summons has been served in accordance with §1049-a (d) (2) of the New York City
      Charter or the statute or rule providing for such docketing. Where a summons is lawfully served in a manner other than that provided in §1049-a(d)(2) or such other provision of law, the Tribunal may hear and determine such summons but the decision will not be automatically docketed in Civil Court or any other place provided for entry of civil judgments without further court proceedings.
  3. Contents of Summons. The summons must contain, at a minimum:
    1. The name and address, when known, of a Respondent;
    2. A clear and concise statement sufficient to inform the Respondent with reasonable certainty and clarity of the essential facts alleged to constitute the violation or the violations charged, including the date, time where applicable, and place when and where such facts were observed;
    3. Information adequate to provide specific notification of the section or sections of the law, rule or regulation alleged to have been violated;
    4. Information adequate for the Respondent to calculate the maximum penalty authorized to be imposed if the facts constituting the violation are found to be as alleged;
    5. Notification of the date, time and place when and where a hearing will be held by the Tribunal or instructions to the Respondent on how to schedule a hearing date. Such date must be at least fifteen (15) calendar days after the summons was served, unless another date is required by applicable law. Where Respondent waives the fifteen (15) day notice and requests an expedited hearing, the Tribunal may assign the case for immediate hearing, upon appropriate notice to Petitioner and opportunity for Petitioner to appear.
    6. Notification that failure to appear at the place, date and time designated for the hearing will be deemed a waiver of the right to a hearing, thereby authorizing the rendering of a default decision; and
    7. Information adequate to inform the Respondent of his or her rights under §6-09 of this chapter.
  4. In the interest of convenient, expeditious and complete determination of cases involving the same or similar issues or the same parties, the Tribunal may consolidate two (2) or more summonses for adjudication at one (1) hearing.
  5. Where a Petitioner withdraws a summons, even if it has been adjudicated, is open or has been decided by the Tribunal, the Petitioner must promptly notify the Tribunal and the Respondent in writing. Thereafter the Tribunal will issue a decision indicating the summons has been withdrawn.

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§6-09 Appearances

  1. A Respondent may appear for a hearing personally or be represented by:
    1. an attorney admitted to practice law in New York State, or
    2. a representative registered to appear before the Tribunal pursuant to §6-23 of this chapter, or
    3. any other person authorized by a Respondent to appear at or before the Tribunal on behalf of the Respondent, as set forth in §6-23(a) of this chapter.
  2. A Respondent may appear for a hearing by:
    1. Appearing in person or by representative at the place, date, and time scheduled for the hearing. Respondent’s appearance is timely if Respondent or Respondent’s representative appears at the scheduled hearing location and is ready to proceed within three (3) hours of the scheduled hearing time for a summons. However, a representative or attorney appearing on fifteen (15) or more summonses on a given hearing date must comply with the requirements set forth in § 6-24 of this chapter to be considered timely; or
    2. Appearing by remote method pursuant to §6-10 of this chapter, only where the summons indicates that such opportunity is available to a Respondent. Where the summons requires personal appearance, a Respondent must appear pursuant to subsection (1) of this subdivision.
  3. Where the terms of a summons authorize a Respondent to do so, a Respondent may also appear by admitting the violation charged on the summons and paying the penalty for the cited violation in the manner and by the time directed in the summons. Payment in full is deemed an admission of liability and no further hearing or appeal will be allowed.
  4. Current Owner of a Property.
    1. Notwithstanding the foregoing, if a prior owner of a property is named on the summons, the current owner of a property may appear on behalf of the prior owner if the summons:
      1. involves a premises-related violation, and
      2. was issued after title to the property was transferred to the current owner.
    2. The current property owner may appear for purposes of presenting a deed and indicating when title passed.
    3. The current owner of the property may also present a defense on the merits of the charge only if the current owner agrees to substitute him or herself for the prior owner and waives all defenses based on service.
  5. Failure to Appear by Respondent. A Respondent's failure to appear timely pursuant to subsection (1) of subdivision (b) of this section, or to make a timely request to reschedule pursuant to §6-05 of this chapter, constitutes a default and subjects the Respondent to penalties in accordance with §6-20 of this chapter.
  6. Notwithstanding any other provision of this section, attorneys or registered representatives who appear on fifteen (15) or more summonses on a given hearing date must comply with the requirements set forth in § 6-24 of this chapter. Failure to do so constitutes a default and subjects the Respondent to penalties in accordance with § 6-20 of this chapter.
  7. A Petitioner may appear for a hearing through an authorized representative at the place, date and time scheduled for the hearing or by remote methods when the opportunity to do so is offered by the Tribunal. If Petitioner elects to appear at the Tribunal, Petitioner’s appearance for a hearing is considered timely if Petitioner is ready to proceed within thirty (30) minutes of the timely appearance by Respondent
  8. Failure to Appear by Petitioner. If Petitioner fails timely to appear at the scheduled place, date and time, pursuant to subdivision (g) of this section, the hearing may proceed without the Petitioner.

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§6-10 Remote Adjudications

  1. When the opportunity to do so is offered by the Tribunal, a Respondent may contest a violation by mail, online, by telephone or by other remote methods.
  2. Adjudication by Mail.
    1. A written submission in an adjudication by mail must be received by the Tribunal before the scheduled hearing date or bear a postmark or other proof of mailing indicating that it was mailed to the Tribunal before the scheduled hearing date. If a request bearing such a postmark or proof of mailing is received by the Tribunal after a first default decision has been issued on that summons, such default will be vacated.
    2. The written submission must contain any denials, admissions and explanations related to the individual violations charged, and documents, exhibits or witness statements, if any, to be considered as evidence in support of Respondent's defense. Violations that are not denied or explained will be deemed to have been admitted; defenses not specifically raised will be deemed to have been waived.
    3. After a review by a Hearing Officer of the written submission, the Tribunal will:
      1. issue a written decision and send the decision to the parties; or
      2. require the submission of additional documentary evidence; or
      3. require an in-person hearing or hearing by telephone, in which case the parties will be notified.
  3. Adjudication Online.
    1. Submissions in an adjudication online must be received by the Tribunal before or on the scheduled hearing date.
    2. The submission must contain any denials, admissions and explanations related to the individual violations charged, and documents, exhibits or witness statements, if any, to be considered as evidence in support of Respondent's defense. Violations that are not denied or explained will be deemed to have been admitted; defenses not specifically raised will be deemed to have been waived.
    3. After a review by a Hearing Officer of the submission, the Tribunal will:
      1. issue a written decision and send the decision to the parties; or
      2. require the submission of additional documentary evidence; or
      3. require an in-person hearing or hearing by telephone, in which case the parties will be notified.
  4. Adjudication by Telephone. Before or on the scheduled hearing date, a respondent may request a hearing by telephone by contacting the Tribunal.

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§6-11 Hearing Procedures

  1. A hearing will be presided over by a Hearing Officer, proceed with reasonable expedition and order and, to the extent practicable, not be postponed or adjourned.
  2. Language assistance services at the hearing.
    1. At the beginning of any hearing, the Hearing Officer will advise the Respondent of the availability of language assistance services. In determining whether language assistance services are necessary to assist the Respondent in communicating meaningfully with the Hearing Officer and others at the hearing, the Hearing Officer will consider all relevant factors, including but not limited to the following:
      1. information from Tribunal administrative personnel identifying a Respondent as requiring language assistance services to communicate meaningfully with a Hearing Officer;
      2. a request by the Respondent for language assistance services; and
      3. even if language assistance services were not requested by the Respondent, the Hearing Officer's own assessment whether language assistance services are necessary to enable meaningful communication with the Respondent.
      If the Respondent requests an interpreter and the Hearing Officer determines that an interpreter is not needed, that determination and the basis for the determination will be made on the record.
    2. When required, language assistance services will be provided at hearings by a professional interpretation service that is made available by the Tribunal. If the professional interpretation service is not available for that language, the Respondent may request the use of another interpreter, in which case the Hearing Officer in his or her discretion may use the Respondent's requested interpreter. In exercising that discretion, the Hearing Officer will take into account all relevant factors, including but not limited to the following:
      1. the apparent skills of the Respondent's requested interpreter;
      2. whether the Respondent's requested interpreter is a child under the age of eighteen (18);
      3. minimization of delay in the hearing process;
      4. maintenance of a clear and usable hearing record; and
      5. whether the Respondent's requested interpreter is a potential witness who may testify at the hearing.
      The Hearing Officer's determination and the basis for this determination will be made on the record.
  3. When a party appears on more than one (1) summons on a single hearing day, the Tribunal has the discretion to determine the order in which the summonses will be heard.
  4. Each party has the right to present evidence, to examine and cross-examine witnesses, to make factual or legal arguments and to have other rights essential for due process and a fair and impartial hearing. Witnesses may be excluded from the hearing room, except while they are actually testifying.
  5. Oaths. All persons giving testimony as witnesses at a hearing must be placed under oath or affirmation.
  6. All adjudicatory hearings will proceed in the following order, subject to modification by the Hearing Officer:
    1. Presentation and argument of motions preliminary to a hearing on the merits;
    2. Petitioner's opening statement, if any;
    3. Respondent's opening statement, if any;
    4. Petitioner's case in chief;
    5. Respondent's case in chief;
    6. Petitioner's case in rebuttal;
    7. Respondent's case in rebuttal;
    8. Respondent's closing argument;
    9. Petitioner's closing argument.
  7. A record will be made of all summonses filed, proceedings held, written evidence admitted and rulings rendered, and such record will be kept in the regular course of business for a period of time in accordance with applicable laws and regulations. Hearings will be mechanically, electronically or otherwise recorded by the Tribunal under the supervision of the Hearing Officer, and the original recording will be part of the record and will constitute the sole official record of the hearing. No other recording or photograph of the hearing may be made without prior written permission of the Tribunal. A copy of the recording will be provided upon request to the Tribunal. The Tribunal may charge a reasonable fee in accordance with Article 6 of the New York State Public Officers Law.
  8. Unless permitted or ordered by the Hearing Officer, parties are prohibited from submitting additional material or argument after the hearing has been completed.

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§6-12 Evidence

  1. Burden of Proof. The Petitioner has the burden of proving the factual allegations contained in the summons by a preponderance of the evidence. The Respondent has the burden of proving an affirmative defense, if any, by a preponderance of the evidence.
  2. Admissibility of Summons. If the summons is sworn to under oath or affirmed under penalty of perjury, the summons will be admitted as prima facie evidence of the facts stated therein. The summons may include the report of the inspector, public health sanitarian or other person who conducted the inspection or investigation that resulted in the summons. When such report is served with the summons, such report will also be prima facie evidence of the factual allegations contained in the report.
  3. Admissibility of Evidence. Relevant and reliable evidence may be admitted without regard to technical or formal rules or laws of evidence applicable in the courts of the State of New York. Irrelevant, immaterial, unreliable or unduly repetitious evidence will be excluded. Immaterial or irrelevant parts of an admissible document must be segregated and excluded to the extent practicable.
  4. Types of Evidence. Evidence at a hearing may include, but is not limited to, witness testimony, documents and objects. Documents may include, but are not limited to, affidavits or affirmations, business records or government records, photographs and other documents.
  5. Official Notice. Official notice may be taken of all facts of which judicial notice may be taken and other facts within the specialized knowledge and experience of the Tribunal or the Hearing Officer. Opportunity to disprove such noticed fact will be granted to any party making a timely motion.
  6. Objections. Objections to evidence must be timely and must briefly state the grounds relied upon. Rulings on all objections must appear on the record.

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§6-13 Hearing Officers

Hearing Officers may:

  1. Administer oaths and affirmations, examine witnesses, rule upon offers of proof or other motions and requests, admit or exclude evidence, grant adjournments and continuances, and oversee and regulate other matters relating to the conduct of a hearing;
  2. Upon request of a party, issue subpoenas or adjourn a hearing for the appearance of individuals or the production of documents or other types of information when the Hearing Officer determines that necessary and material evidence will result;
  3. Bar from participation in a hearing any person, including a party, representative or attorney, witness or observer who engages in disorderly, disruptive or obstructionist conduct that disrupts or interrupts the proceedings of the Tribunal, and continue the hearing without that person's presence;
  4. Carry out adjudicatory powers of:
    1. the hearing examiner set forth in Title 17 of the New York City Administrative Code and associated rules and regulations and the New York City Health Code as codified within Title 24 of the Rules of the City of New York, and
    2. an administrative law judge set forth in Title 19 of the New York City Administrative Code;
  5. Allow an amendment to a summons only upon a motion at any time if:
    1. the subject of the amendment is reasonably within the scope of the original summons;
    2. such amendment does not allege any additional violations based on an act not specified in the original summons;
    3. such amendment does not allege an act that occurred after the original summons was served; and
    4. such amendment does not affect the Respondent's right to have adequate notice of the allegations made against him or her.
  6. Request further evidence to be submitted by the Petitioner or Respondent;
  7. Make final or recommended decisions pursuant to applicable law, rule or regulation; and
  8. Take any other action authorized by applicable law, rule or regulation, or that is delegated by the Chief Administrative Law Judge.

§6-14 Requests for Adjournment

  1. At the request of either party during a hearing, a Hearing Officer may adjourn the hearing upon a showing of good cause as determined by the Hearing Officer in his or her discretion.
  2. In deciding whether there is good cause for an adjournment, the Hearing Officer will consider:
    1. Whether granting the adjournment is necessary for the party requesting the adjournment to effectively present the case;
    2. the Respondent timely appears on the adjourned hearing date, and
    3. Whether granting the adjournment will cause inconvenience to any witness;
    4. The age of the case and the number of adjournments previously granted;
    5. Whether the party requesting the adjournment had a reasonable opportunity to prepare for the scheduled hearing;
    6. Whether the need for the adjournment is due to facts that are beyond the requesting party's control;
    7. The balance of the need for efficient and expeditious adjudication of the case and the need for full and fair consideration of the issues relevant to the case; and
    8. Any other fact that the Hearing Officer considers to be relevant to the request for an adjournment.
  3. Once a hearing has been adjourned, neither party may request a reschedule pursuant to section 6-05 of this chapter. A denial of an adjournment request is not subject to interim review or appeal.

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§6-15 Appearances of Inspectors

  1. Upon request of either party, a Hearing Officer may grant an adjournment for the testimony of an Inspector if the Hearing Officer finds that the Inspector’s testimony is likely to be necessary to a fair hearing on the violation(s) charged and/or the defense(s) asserted.
  2. If a Hearing Officer has adjourned a hearing solely for the purpose of obtaining the Inspector's testimony, and the Respondent timely appears on the adjourned hearing date but the Inspector fails timely to appear, the hearing shall not be further adjourned solely to obtain the testimony of such Inspector, unless the Respondent consents to the second adjournment or the Hearing Officer finds that extraordinary circumstances warrant the second adjournment. "Extraordinary circumstances" are circumstances that could not have been reasonably foreseen by the Petitioner.
  3. A Hearing Officer may not adjourn a hearing on more than two (2) occasions for the appearance of the Inspector.

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§6-16 Representation

  1. Each party has the right to be represented by an attorney or another authorized representative, as set forth in §§6-09 and 6-23 of this chapter.
  2. An attorney or representative appearing at the Tribunal must provide staffing sufficient to ensure completion of his or her hearings. The failure of a representative or attorney to provide sufficient staffing may be considered misconduct under §6-25 of this chapter. The Tribunal may consider the following factors in determining whether sufficient staffing has been provided:
    1. the number of cases the representative or attorney had scheduled on the hearing date;
    2. the number of representatives or attorneys sent to handle the cases;
    3. the timeliness of the arrival of the representatives or attorneys;
    4. the timeliness of the arrival of any witnesses; and
    5. any unforeseeable or extraordinary circumstances.
  3. When any attorney or representative appears on more than one (1) summons on a single hearing day, the Tribunal has the discretion to determine the order in which such summonses will be heard.

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§6-17 Decisions

  1. Decisions. After a hearing, the Hearing Officer who presided over the hearing will promptly write a decision sustaining or dismissing each charge in summons. The Tribunal will promptly serve the decision on all parties. Each decision will contain findings of fact and conclusions of law. Where a violation is sustained, the Hearing Officer will impose the applicable penalty, which may include a fine, penalty points, a suspension or revocation of the respondent's license or any other penalty authorized by applicable laws, rules and regulations.
  2. Except as provided in subdivision (c), the decision of the Hearing Officer is the final decision unless an appeal is filed pursuant to §6-19 of this Chapter.
  3. Recommended Decisions.
    1. For all violations of Article 13-E of the New York State Public Health Law, the Hearing Officer will issue a recommended decision and order, which the Commissioner of the Department of Health and Mental Hygiene may adopt, reject or modify, in whole or in part.
    2. For all violations of Article 13-F of the New York State Public Health Law:
      1. where the Department of Consumer Affairs is the petitioner, the Hearing Officer will issue a recommended decision and order, which the Commissioner of such department may adopt, reject or modify, in whole or in part.
      2. where the Department of Health and Mental Hygiene is the petitioner, the Hearing Officer will issue a recommended decision and order, which the Commissioner of such department may adopt, reject or modify, in whole or in part.
    3. For all violations in which summonses are returnable to the Tribunal as authorized by the Board under §1049-a of the New York City Charter and provisions of the New York City Administrative Code, any rules and regulations made thereunder, or provisions of New York State law, the Hearing Officer's decision is a recommended decision to the Board. If an appeal is not filed pursuant to §6-19, the Hearing Officer's recommended decision will be automatically adopted by the Board and will constitute the Board's final decision in the matter. The Board's final decision is also the final decision of the Tribunal.
    4. For all violations of Section 194 of Article 11 of the New York State General Business Law, Article 5 of the New York State General Business Law, and Sections 192, 192-a, 192-b, and 192-c of Article 16 of the New York State Agriculture and Markets Law, and of any rules and regulations promulgated thereto, the Hearing Officer will issue a recommended decision and order, which the Commissioner of the Department of Consumer Affairs may adopt, reject or modify, in whole or in part.
  4. The Tribunal may, due to Tribunal needs or the unavailability of the Hearing Officer who heard the case, designate another Hearing Officer to write the recommended decision. The decision will state the reason for the designation and will be based on the record, which includes
    1. the summons,
    2. all briefs filed and all exhibits received in evidence, and
    3. a complete audio recording of the hearing or, if a complete audio recording is unavailable for any reason, a complete transcript of the hearing.

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§6-18 Payment of Penalty

A copy of the decision, other than a default decision mailed or otherwise provided in accordance with §6-20 of this chapter, will be served immediately on the Respondent or on the Respondent's authorized representative, either personally or by mail. Any fines, penalties or restitution imposed must be paid within thirty (30) days of the date of the decision, or thirty-five (35) days if the decision was mailed, unless the agency responsible for collecting payment of the fines and penalties imposed enters into a payment plan with the Respondent.

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