Section 24-257
§ 24-257 Powers of the board. (a) The board, in addition to other
duties assigned to it by law, shall have the power to conduct hearings
pursuant to this subchapter and, by the issuance of a subpoena, compel
the attendance of witnesses and the production of any books, papers or
other things relating to the matter under investigation.
(b) The board may, upon notice pursuant to section 24-259 of this
code, and after a hearing pursuant to section 24-263 of this code, or in
default thereof pursuant to section 24-264 of this code: (1) Order the
commissioner to revoke or suspend a certificate or tunneling permit
issued pursuant to this code for any device or activity where such
device or activity causes, or is maintained or operated so as to cause a
violation of any provision of this code or order or regulation
promulgated by the commissioner or the board;
(2) Order the owner of any device which causes or is maintained or
operated so as to cause a violation of any provision of this code or any
order or regulation promulgated by the commissioner or the board, to
install any apparatus which can reasonably be expected to correct the
violation, or to repair, properly maintain, replace or alter such device
in a manner which can reasonably be expected to correct the violation;
(3) Seal any device which causes or is maintained or operated so as to
cause a violation of any provision of this code or order or regulation
promulgated by the commissioner or the board, except as provided in
subdivision (c) of this section;
(4) Order any person to cease and desist from any activity which
causes or is conducted so as to cause a violation of any provision of
this code or any order or regulation promulgated by the commissioner or
the board, except as provided in subdivision (c) of this section;
(5) Impose a civil penalty in each instance in an amount as set out in
table I against any person who violates a provision of this code, or of
any order, rule or regulation promulgated by the commissioner or the
board. Each day during which such violation continues shall constitute a
separate violation. The board may remit, in whole or in part, such a
civil penalty if, at the conclusion of the hearing or at the time of the
board determination under section 24-266 of this code, the respondent is
no longer in violation of a provision of this code, or of any order,
rule or regulation promulgated by the commissioner or the board;
TABLE I
________________________________________________________________________
Civil Penalties
Violations
related to section First Second Third and
and subdivision Violation Violation* Subsequent
Violations*
Maxi- Mini- Maxi- Mini- Maxi- Mini-
mum mum mum mum mum mum
24-216 (d) 2,625 650 5,250 1,300 7,875 1,950
24-218 1,000 350 2,000 700 3,000 1,050
24-218.1 50 50 50 50 50 50
24-220 1,400 440 2,800 880 4,200 1,320
24-222 3,500 875 7,000 1,750 10,500 2,625
24-223 3,500 875 7,000 1,750 10,500 2,625
24-224 3,500 875 7,000 1,750 10,500 2,625
24-225 1,400 440 2,800 880 4,200 1,320
24-226 1,400 440 2,800 880 4,200 1,320
24-227 875 220 1,750 440 2,625 660
24-228 1,400 440 2,800 880 4,200 1,320
24-229 1,400 440 2,800 880 4,200 1,320
24-230 1,400 440 2,800 880 4,200 1,320
24-231 (a) 8,000 2,000 16,000 4,000 24,000 6,000
24-231 (b) 1,750 440 3,500 880 5,250 1,320
24-231 (c) 875 350 1 750 700 2,625 1,050
24-232 1,400 440 2,800 880 4,200 1,320
24-233 (a) 175 50 350 100 525 150
24-233 (b) (1) 175 50 350 100 525 150
24-233 (b) (2) 350 100 700 200 1,050 300
24-234 175 50 350 100 525 150
24-235 175 50 350 100 525 150
24-236 (a) 525 150 1 050 300 1,575 450
24-236 (b) (c) (d) 1,440 440 2,800 880 4,200 1,320
24-237 (a) 1,000 150 2,000 300 3,000 450
24-237 (b) 875 220 1,750 440 2,625 660
24-237 (c) 875 220 1,750 440 2,625 660
24-237 (d) 1,000 350 2,000 700 3,000 1,050
24-238 875 220 1,750 440 2,625 660
24-239 (b) 350 100 700 200 1,050 300
24-241 1,400 440 2,800 880 4,200 1,320
24-242 875 220 1,750 440 2,625 660
24-244 1,750 440 3,500 880 5,250 1,320
24-245 2,625 660 5,250 1,320 7,875 1,980
All remaining sections
and subdivisions 875 220 1,750 440 2,625 660
* By the same respondent of the same provision of law, order, rule or
regulation and, if the respondent is the owner, agent, lessee or other
person in control of the premises with respect to which the violation
occurred, at the same premises (all violations committed within two
years).
________________________________________________________________________
Each day during which such violation continues shall constitute a
separate violation. The board may remit, in whole or in part, such a
civil penalty if, at the conclusion of the hearing or at the time of the
board determination under section 24-266 of this code, the respondent is
no longer in violation of a provision of this code, or of any order,
rule or regulation promulgated by the commissioner or the board;
(6) Impose a civil penalty of not more than two hundred fifty dollars
on any owner of a device for each day such equipment is sealed pursuant
to this section;
(7) Impose a civil penalty of not less than one thousand nor more than
four thousand dollars on any person who willfully breaks, or causes or
permits the breaking of, a seal placed on a device pursuant to this
section.
(8) Impose an additional civil penalty in the amount of twenty-five
percent of that which would otherwise be imposed for each twelve
decibels by which the sound or noise level measured exceeds the maximum
sound level as contained in subchapters five and six of this chapter.
(9) Impose an additional civil penalty in the amount of ten percent of
the penalty originally imposed, for late payment of penalty for each
month, or part thereof, that the penalty payment is in arrears. In no
event shall the total additional civil penalty exceed the maximum set
forth in the table of civil penalties, or as modified pursuant to
paragraph eight of this subdivision or paragraph ten of this
subdivision, or both.
(10) Order any person to be classified as a persistent violator if
such person is found to be in violation of this code and has also on one
or more prior occasions within the preceding five years been found to be
in violation of this code, where such repeated violations evidence
substanial disregard thereof. If a person is classified as a persistent
violator, the board shall in each instance double the amount of the
penalty which it would otherwise impose pursuant to paragraph five of
this subdivision. Such double penalties shall be imposed for violations
which the board finds a person committed pursuant to the same proceeding
at which it classified such person as a persistent violator and for all
violations committed within two years immediately following such
classification, after which such classification shall terminate.
However, if at the end of such two year period such person is still in
violation of this code because of a failure to take or complete a
corrective action as required by the board, such classification shall
continue until such time as such person is no longer in violation of
this code because of such failure, at which time such classification
shall cease. Thereafter, the board may again classify such person as a
persistent violator, on the same basis it used originally.
(c) The board may, upon notice pursuant to section 24-259 of this
code:
(1) order any person to cease and desist from the operation of any
listed device without a certificate as required by section 24-245 of
this code and the board may also seal such device;
(2) order any person to cease and desist from tunneling without a
tunneling permit as required by section 24-245 of this code and the
board may also seal any device used in such tunneling;
(3) order any person not in possession of an after hours work
authorization issued pursuant to section 24-223 of this code to cease
and desist from construction activities other than during the
permissible hours specified in section 24-222 of this code and the board
may also seal any device used in such construction activities;
(4) order any person to cease and desist from the operation of a
device without registration required by section 24-208 of this code and
the board may also seal such device.
(d) The board may order the commissioner to install any apparatus or
to repair or alter any device or apparatus which causes or is maintained
or operated so as to cause a violation of an order issued pursuant to
paragraph two of subdivision (b) of this section, where such repairing
or alteration can reasonably be expected to correct such a violation.
Any work required under such an order may be executed by the
commissioner through the officers, agents or contractors of the
department. The department shall be reimbursed promptly for all costs
and expenses of such work by the owner of the device to which the order
relates and in respect to which such expenses were incurred. Such
expenses may be recovered in a civil action brought in the name of the
commissioner.
(e) If an order of the board issued pursuant to subdivisions (b) and
(c) of this section provides for a period of time during which a person
subject to the order is permitted to correct a violation, the board may
require the respondent to post a performance bond or other security with
the department in a form and amount sufficient to assure the correction
of such violation within the prescribed time. In the event of a failure
to meet the schedule prescribed by the board, the sum named in the bond
or other security shall be forfeited and shall be paid to the
commissioner.
(f) (1) The board may order any person to cease and desist from an
activity which it reasonably believes causes unreasonable noise which
creates imminent peril to the public health and well being, or to cease
and desist from an activity which it reasonably believes constitutes a
wilful or continued violation of any provision of this code or order or
regulation, promulgated by the commissioner or board. Such order shall
be effective upon service thereof. Any party affected by such an order
may request a hearing on written notice, and he or she shall be afforded
a hearing, within twenty-four hours after service of such request,
pursuant to section 24-263 of this code. If such an accelerated hearing
is not requested, then a hearing shall be afforded within ten days of
the issuance of the order. The board shall issue its final decision and
order thereon within three days from the conclusion of a hearing held
pursuant to this subdivision.
Section 24-258
§ 24-258 The board. (a) The board shall be convened by the
chairperson, or in the chairperson's absence the assistant commissioner
of environmental compliance, or at the request of any three members
thereof.
(b) If a member of the board has presided over the initial hearing, he
or she shall not be disqualified from reviewing the hearing.
(c) Five members of the board, at least two of whom shall not be city
officials, shall constitute a quorum.
Section 24-259
§ 24-259 Notice of violation. (a) Notice, required by this chapter,
shall be given by issuance of a notice of violation.
(b) Whenever the commissioner has reasonable cause to believe that a
violation of any provision of this code or any order or regulation
promulgated by the commissioner or the board may exist, he or she may
cause to have a notice of violation issued and served on:
(1) The person in violation; or
(2) An owner with an equity interest in the device in violation, if
any; or
(3) If an owner with an equity interest in the device in violation
cannot be located with due diligence, any other owner of said device.
(c) A notice of violation shall:
(1) Specify the section or sections of this code, order, or regulation
that such person or device is in violation of; and
(2) Indicate the amount of the civil penalty that such person is
subject to; and
(3) Contain a brief statement of the nature of the violation; and
(4) Require a written response that conforms to section 24-260 of this
code; and
(5) Require such person or owner of a device, unless a hearing is not
required by section 24-257 of this code, to answer the allegations in
the notice of violation at a time and place designated either in or with
the notice of violation or in a subsequent notice to such person or
owner.
Section 24-260
§ 24-260 Written response. (a) A written response in a form prescribed
by the board shall be served upon the department and filed with the
board within five days of receipt of the notice of violation.
(b) If the allegation in the notice of violation is one for which a
hearing is not required by section 24-257 of this code, and is
contested, then the respondent must either:
(1) Include a copy of any tunneling permit or certificate that the
respondent asserts was issued by the department; or
(2) Deny that such tunneling permit or certificate is required by law.
(c) If any of the allegations in the notice of violation are those for
which a hearing is required by section 24-257 of this code, and are
contested, the written response shall contain a concise statement of the
facts constituting each ground of defense.
(d) If allegations in the notice of violation are admitted the written
response of the respondent shall consist of:
(1) A statement that he or she admits all of the material allegations
to be true; and
(2) A statement of any attempts subsequent to service of the notice of
violation to comply with this code or with the order or regulation.
(e) Failure of the respondent to serve a written response within the
time provided shall be deemed to constitute a waiver of his or her right
to appear and contest the allegations in the notice.
Section 24-261
§ 24-261 Citizen's complaint. (a) Any person other than personnel of
the department and employees of the city of New York authorized by law
to serve summonses for violation of the code may serve upon the
department a complaint in a form prescribed by the commissioner alleging
that a person has violated a provision of this code set forth in table
VI, below, or an order or regulation promulgated under such provision
together with evidence of such violation.
Table VI
Violation related to
section or subdivision
and order or regulation
thereunder
24-208
24-216
24-220 (b)
24-224
24-232, except that the provisions of this section 24-261 shall apply
only to violations by persons operating motor vehicles listed in sub-
divisions one and two of column I, and subdivisions one and two of
column II of Table 1. 24-234 24-236 24-237, except that the provisions
of this section 24-261 shall apply only to a violation by a person
operating a circulation device with a rated capacity in excess of
fifty thousand British thermal units per hour or its equivalent.
24-238
24-240
24-241
24-244
24-245
(b) A person who has served a complaint pursuant to subdivision (a) of
this section may serve upon the person allegedly in violation and upon
the board a notice of violation in a form prescribed by the board, if
within thirty days from service of such complaint:
(1) The department has failed to serve a notice of violation, pursuant
to section 24-259 of this code, for the violation alleged in a complaint
pursuant to subdivision (a) of this section; or
(2) The department fails to serve a written notice upon the
complainant of its determination that his or her complaint is frivolous
or duplicitous.
(c) A person commencing a proceeding before the board pursuant to this
section, shall prosecute such proceeding at his or her own expense. The
department may intervene in such a proceeding at any time.
(d) In any proceeding brought by the department after receiving a
complaint pursuant to subdivision (a) of this section, the board shall
award the complainant, out of the proceeds collected, fair and
reasonable compensation, which shall not exceed twenty-five percent of
the proceeds collected, for disclosure of information or evidence not in
the possession of the department, which leads to the imposition of the
civil penalty.
(e) In any proceeding brought by a complainant, the board shall award,
out of the proceeds collected, fifty percent of any civil penalty as
fair and reasonable compensation to such person.
Section 24-262
§ 24-262 Settlement of proceedings. The board may settle any
proceeding by stipulation and may exercise any or all of its powers
under section 24-257 of this code thereby, at any time prior to the
issuance of a decision pursuant to section 24-266 of this code.
Section 24-263
§ 24-263 Hearings. (a) The chairperson of the board shall designate a
hearing officer or at least one member of the board to preside over
hearings held pursuant to this subchapter. In any hearing in which a
quorum of the board is present, such members shall be deemed to be
sitting as the board.
(b) All such hearings shall be open to the public.
(c) At the request of any party to such a hearing, the board shall by
the issuance of a subpoena compel the attendance of such witnesses and
shall require the production of any such books, papers, or other things
relating to the matter under investigation if such a request reasonably
relates to such hearing.
(d) Any party to a hearing may be represented by counsel, may make
oral and written argument and cross-examine witnesses. All testimony
taken before the board or the designated hearing officer shall be under
oath and shall be recorded. The record shall be open to public
inspection, and copies thereof shall be made available to any person
upon payment of the actual cost of reproduction.
Section 24-264
§ 24-264 Default; vacating a default order. (a) A respondent shall be
in default when the respondent has:
(1) Failed to serve a written response pursuant to section 24-260 of
this code; or
(2) Failed to appear at the designated time and place as required by
the notice of violation or subsequent notice pursuant to section 24-259
or 24-261 of this code; or
(3) Neglected to proceed in a manner ordered by the board.
(b) Within sixty days of a decision and order of the board issued
pursuant to paragraph two of subdivision (c) of section 24-266 of this
subchapter, the respondent may request the board to grant a stay of such
order of the board and schedule a hearing. If the respondent has shown
good cause and a meritorious defense, the board may grant such a request
and hold a hearing pursuant to section 24-263 of this code. At the
conclusion of the hearing, the board may adopt, amend or rescind its
decision and order.
Section 24-265
§ 24-265 Hearing officer's decision. (a) At the conclusion of the
hearing, the hearing officer or member of the board conducting the
hearing shall prepare a decision stating findings of fact and
conclusions, as well as reasons for his or her determination on all
material issues, and making recommendations as to action which should be
taken in the matter.
(b) The hearing officer or member of the board conducting the hearing
shall file his or her decision with the board and send copies by mail to
the parties. Any party may file exceptions with the board within twenty
days after service of such decision. If no exceptions have been filed
within the described time, the recommendations of the hearing officer or
member of the board conducting the hearing shall automatically become
the decision of the board and shall constitute its findings, conclusions
and order.
(c) At the conclusion of a hearing conducted by the board, the board
shall issue its decision and order. The decision of the board shall
conform to the requirements of subdivisions (b) and (c) of section
24-266 of this code.
Section 24-266
§ 24-266 Board decision and order. (a) If any party files exceptions
to the decision of the hearing officer or member of the board conducting
a hearing within the prescribed time the board shall review the record
and issue its decision and order in which it may adopt, modify or reject
the findings, conclusions and recommendations of the hearing officer or
member of the board who conducted the hearing.
(b) The decision of the board shall contain findings of fact,
conclusions of law and reasons for the decision on all material issues
raised, and an order either dismissing the allegations of the notice of
violation or sustaining them in whole or in part.
(c) The board may exercise one or more of its powers pursuant to
section 24-257 of this code, as it deems appropriate if:
(1) The allegations in the notice of violation are sustained in whole
or in part;
(2) The respondent is in default under section 24-264 of this code.
(d) The decision and order of the board shall be its final
determination. A judicial proceeding must be commenced within two months
after the service of such decision and order.
Section 24-267
§ 24-267 Compliance with board decisions; orders and civil penalties.
(a) If the respondent fails or refuses to comply with the board's order,
or the board otherwise deems it necessary, the corporation counsel for
the city of New York, acting in the name of the city, may maintain an
action or proceeding in a court of competent jurisdiction to compel
compliance with or restrain by injunction the violation of any order of
the board.
(b) A civil penalty imposed by the board pursuant to section 24-257 of
this code may be collected in an action brought in the name of the city
of New York.
Section 24-268
§ 24-268 Procedural rules. The board shall have authority from time to
time to make, amend and rescind such procedural rules as may be
necessary to carry out the provisions of this subchapter.
Section 24-269
§ 24-269 Criminal penalties. (a) Any person who shall knowingly make a
false statement or who shall knowingly falsify or allow to be falsified
any certification, registration, form, signed statement, application or
report required under the provisions of this code or regulation
promulgated by the commissioner or the board shall be guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a fine of
not less than one hundred dollars nor more than one thousand dollars, or
by imprisonment not to exceed five months, or both.
(b) Any person, other than a corporation, who violates any order of
the commissioner or the board or any provision of section 24-245 of this
code or who illegally breaks a seal on equipment, upon conviction shall
be punished for each offense by a fine of not less than fifty dollars
nor more than five hundred dollars, or by imprisonment for not more than
thirty days or by both.
Any corporation which violates any order of the commissioner or the
board or any provision of section 24-245 of this code, or which
illegally causes a seal to be broken, upon conviction shall be punished
for each offense by a fine of not less than one hundred dollars nor more
than two thousand dollars.
Every day during which such violation occurs constitutes a separate
offense.
(c) Any person, other than a corporation, convicted of willful failure
to pay a civil penalty imposed by the board pursuant to section 24-257
of this code shall be punished by a fine of double the amount of the
civil penalty imposed by the board, or by imprisonment for not more than
sixty days, or by both.
Any corporation convicted of a wilful failure to pay a civil penalty
imposed by the board pursuant to section 24-257 of this code shall be
punished by a fine of double the amount of the civil penalty imposed by
the board, but not more than two thousand dollars.
(d) The failure of any person or corporation against whom an action
has been brought to collect a civil penalty pursuant to subdivision (b)
of section 24-267 of this code, who has been found liable by a court for
such civil penalty and who does not pay such penalty after the judgment
of such becomes final, shall be deemed guilty of a willful failure to
pay a civil penalty.
(e) Any person convicted of violating any of the provisions of this
code or any regulation of the board not otherwise provided for by this
section shall be punished by a fine of not less than fifty dollars nor
more than five hundred dollars for the first offense, or by imprisonment
for twenty days, or both; and by a fine of not less than one hundred
dollars nor more than one thousand dollars, or by imprisonment for not
more than thirty days, or both, for a second offense; and by a fine of
not less than four hundred dollars nor more than five thousand dollars,
or by imprisonment for not more than four months or both for a third or
subsequent offense.
(f) Twenty-five percent of any fine that is imposed pursuant to this
section may be paid to the person or persons giving information which
shall lead to conviction.
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