Subchapter F: Special Hearings and Enforcement Proceedings

§3-91: Cease and Desist Actions
§3-92: Post-Sealing Special Hearing
§3-93: Application for a Temporary or Limited Unsealing or Stay
§3-94: Hearings after Emergency Cease and Desist Orders
§3-95: Post Judgment Amendment of Records
§3-96: Defense Based on Sovereign or Diplomatic Immunity

§3-91: Cease and Desist Actions

(a) Scope. This section governs cease and desist actions brought by the board pursuant to Administrative Code §§24-178, 24-257, or 24-524, after respondent has had notice and an opportunity for a hearing on the violations alleged pursuant to the provisions of §§24-184, 24-263, or 24-524 as appropriate, and has failed to comply with orders issued by the board in such proceedings.

(b) Issuance of Order and Notice. Cease and desist actions shall be commenced by the issuance by the board of an order to cease and desist and a notice of special hearing. The order and notice shall identify the particular compliance order previously issued after an adjudicatory hearing, or in default thereof, that respondent is alleged to have disregarded, and the activity, equipment, device and/or process involved. The order shall direct respondent to show cause at a special hearing why the equipment, device or process should not be sealed and additional penalties imposed and shall notify respondent that if respondent does not appear as directed, the board order will be implemented forthwith.

(c) Service. The order to cease and desist and notice of special hearing shall be served personally and by regular mail.

(d) Hearing. The special hearing shall be presided over by a hearing officer of the tribunal who shall have all of the powers and duties set out in subchapter C of these rules for adjudicatory hearings, except as more specifically provided below. The hearing officer shall receive such evidence as may be presented by the petitioner which requested the board to issue the cease and desist order concerning respondent's failure to comply with orders previously issued, and such evidence as respondent may present in defense.

(e) Report. In lieu of a recommended hearing decision and order, the hearing officer shall prepare a report summarizing the evidence and arguments offered together with the hearing officer's findings of fact and recommendation as to whether the sealing should proceed and additional penalties be imposed. The report shall be promptly filed with the board.

(f) Board Order. Upon receipt of the hearing officer's report, the board may adopt, reject or modify the findings and recommendations and direct such further hearings or issue such further orders to respondent as are appropriate under the circumstances to assure correction of the violations. In any case in which the board issues an order requiring affirmative action to be taken by the respondent, such order may also require the respondent to file with the board a report or reports under oath attesting to respondent's compliance with the order. Failure to file a required report within the time limit set forth may, in the board's discretion, constitute a violation of the order regardless of whether the respondent has otherwise been in compliance with the provisions of the order.

§3-92: Post-Sealing Special Hearing

At any time after a sealing has taken place, a respondent may request a special hearing to present evidence as to why the seal should be removed or sealing order modified. The request may be made by letter addressed to the board or the executive director or their designee at the tribunal. A special post-sealing hearing shall then be scheduled and shall be presided over by a hearing officer of the tribunal and conducted in accordance with the provisions of subparagraphs (d), (e) and (f) of §3-81 of these rules.

§3-93: Application for a Temporary or Limited Unsealing or Stay

If it appears that remediation undertaken by a respondent cannot proceed or its effectiveness cannot be tested while a seal remains in place, the respondent may, by written application addressed to the executive director, request that a seal be temporarily removed or stayed for a limited period. The executive director may authorize a temporary unsealing or stay of sealing for the above specified reasons for such limited period and subject to such conditions as the executive director deems appropriate.

§3-94: Hearings after Emergency Cease and Desist Orders

When the board has issued an emergency cease and desist order, without hearing, on account of an imminent peril to public health, pursuant to Administrative Code §§24-178(f), 24-346(e) or 24-523(b), any person affected by such emergency order may, by written notice to the board, request a hearing or an accelerated hearing in accordance with said provisions. The hearing held pursuant to the request shall be held by the board and shall not be referred to a hearing officer. The hearing shall otherwise be conducted in accordance with the relevant provisions of law and such of the board's rules for adjudicatory hearings as may be applicable.

§3-95: Post Judgment Amendment of Records

(a) Upon the motion of any party, the board may amend a judgment or judgments to designate a judgment debtor by his, her or its correct legal name.

(b) The motion shall be made in writing and filed with the executive director. The movant shall also file an affidavit setting forth the facts and evidence relied on by the movant and an affidavit of service, by certified or registered mail and regular mail, of the motion on the party whose name is sought to be corrected in the judgment or judgments at his, her or its last known address and at the address or addresses at which the notice or notices of violation was or were served. Such motion shall be served on all parties. The date and time of the hearing on the motion is to be set forth in the moving papers in accordance with the direction of the executive director but shall not be sooner than 10 days after the service of such motion on the party whose name is sought to be corrected. At such hearing any party may appear, in person or otherwise, with or without counsel, cross-examine witnesses, present evidence and testify. If the party whose name is sought to be corrected does not appear at the hearing the hearing officer may proceed to determine the evidence presented by the moving party in support of the motion.

(c) If the hearing officer finds that the movant has established, by a preponderance of evidence (i) the true name of the judgment debtor, (ii) that such person is the same person as the person designated on the notice of violation as responsible for the violation or violations and (ii) that service of the notice or notices of violation and of all other papers in the proceeding or proceedings was or were properly made upon such person, he or she shall grant such motion and issue a recommended decision and order directing the amendment and correction, to reflect the correct legal name of such person, of all records relating to the proceedings commenced by the service of such notice or notices of violation, including the records of judgments filed with the civil court and in the office of the county clerk.

(d) The recommended decision and order shall be filed with the executive director and served on all parties. Any party who appeared at the hearing, in person or otherwise, may file exceptions to such recommended decision and order in the manner provided in §3-71 of these rules and the board shall render a final decision and order on such exceptions. Such final decision and order shall be the final decision of the board for purposes of review pursuant to article 78 of the Civil Practice Law and Rules.

(e) If exceptions are not filed within the time provided in §3-71, the hearing officer's recommended decision and order shall become the final decision and order of the board and, in accordance with applicable law, shall not be subject to review pursuant to article 78 of the Civil Practice Law and Rules.

(f) An order correcting a judgment shall not affect the duration of a judgment. The judgment shall remain in full force and effect for eight years from the date the judgment was originally entered.

§3-96: Defense Based on Sovereign or Diplomatic Immunity

(a) A respondent may present a defense based on sovereign or diplomatic immunity:
(1) in a writing that is received no later than seven business days before the date stated on the notice of violation by which the respondent may admit or deny the violation charged, in which event, the tribunal shall thereupon assign the matter to a hearing officer; or
(2) at a hearing orally or in writing, but only if a representative of the petitioning agency is present at the hearing or if the respondent at that time consents to an adjournment of the hearing; or
(3) in a response submitted in any case in which adjudication by remote method is allowed pursuant to section 3-32 of these rules.
(b) Upon presentation of a defense based on sovereign or diplomatic immunity, the hearing officer must issue an order:
(1) adjourning the hearing for no less than 30 and no more than 60 days;
(2) setting forth in detail the violations alleged in the notice of violation;
(3) giving notice to the City entity charged with serving as the official liaison with foreign governments, hereinafter referred to as “liaison,” that the respondent has presented a defense based on sovereign or diplomatic immunity.
Any order issued pursuant to this subdivision must also be promptly served by the tribunal on the liaison.
(c) After the granting of an adjournment under subsection (b), either party may request to extend the time period of the adjournment. If the request is accompanied by a written submission from the liaison indicating more time is necessary for the parties to resolve the matter, the hearing officer must grant the request.
(d) (1) At a hearing held following an adjournment pursuant to this section, the hearing officer must issue a determination whether or not the respondent is entitled to sovereign or diplomatic immunity.
(2) If the hearing officer determines that the respondent is entitled to sovereign or diplomatic immunity, he or she must dismiss the notice of violation without a determination of the respondent’s liability.
(3) If the hearing officer rejects the defense of sovereign or diplomatic immunity, a hearing on the violation must be conducted pursuant to the rules governing hearings in this Chapter.