S04960-A
STATE OF NEW YORK
________________________________________________________________________
4960--A
Cal. No. 1020
2003-2004 Regular Sessions
IN SENATE
May 2, 2003
___________
Introduced by Sens. LAVALLE, BALBONI -- read twice and ordered printed,
and when printed to be committed to the Committee on Higher Education
-- reported favorably from said committee, ordered to first and second
report, ordered to a third reading, amended and ordered reprinted,
retaining its place in the order of third reading
AN ACT to amend the education law, in relation to regulation of the
professions and the enforcement of provisions relating to unlicensed
practice of a profession
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Section 6515 of the education law, as amended by chapter
2 684 of the laws of 1976, is amended to read as follows:
3 § 6515. Restraint of unlawful acts. Where a violation of this title
4 is alleged to have occurred, the attorney general, the department or, in
5 the event of alleged violations of article one hundred fifty-five of
6 this title occurring in cities having a population of one million or
7 more, the corporation counsel may apply to the supreme court within the
8 judicial district in which such violation is alleged to have occurred
9 for an order enjoining or restraining commission or continuance of the
10 unlawful acts complained of. [The court shall have jurisdiction of the
11 proceedings and shall have power to grant such temporary relief or
12 restraining order as it deems just and proper. In any such proceeding
13 it shall be unnecessary to allege or prove that an adequate remedy at
14 law does not exist or that irreparable damage would result if such order
15 were not granted.] The remedy provided in this section shall be in addi-
16 tion to any other remedy provided by law or to the proceedings commenced
17 against a licensee under this title.
18 § 2. The education law is amended by adding a new section 6516 to read
19 as follows:
20 § 6516. Civil enforcement proceedings and civil penalties. 1. Issu-
21 ance of cease and desist order. Whenever the department has reasonable
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03039-05-3
S. 4960--A 2
1 cause to believe that any person has violated any provision of section
2 sixty-five hundred twelve or sixty-five hundred thirteen of this arti-
3 cle, the department may issue and serve upon such person a notice to
4 cease and desist from such violation. Such cease and desist order shall
5 be served personally by the department. If personal service can not be
6 made after due diligence and such fact is certified under oath, a copy
7 of the order shall be made by certified mail, return receipt requested,
8 to the person's last known address by the department.
9 2. Contents of cease and desist order. The cease and desist order
10 shall be in writing and shall describe with particularity the nature of
11 the violation, including a reference of the specific provision or
12 provisions of law alleged to have been violated and an order to the
13 respondent to cease any unlawful activity. The cease and desist order
14 shall advise the respondent (a) of the right to contest the order by
15 requesting a hearing within thirty days of the service of the cease and
16 desist order before a hearing officer designated by the department (b)
17 of the right to request a stay of the cease and desist order at the time
18 a hearing is requested and (c) shall set forth the respondent's rights
19 at such a hearing pursuant to subdivision five of this section.
20 3. Civil penalties. Civil penalties up to five thousand dollars may
21 be imposed for each violation and the respondent may be ordered to make
22 restitution to any person who has an interest in any money or property,
23 either real or personal, acquired by the respondent as a result of a
24 violation. Whenever the department concludes that civil penalties
25 and/or restitution may be warranted because of the egregiousness of the
26 unlawful activity, it may serve, along with the cease and desist order,
27 a notice of a hearing on the allegations of unlawful activity and the
28 department's intention to order the respondent to make restitution
29 and/or impose a civil penalty. The notice should specify the civil
30 penalty sought for each violation.
31 4. Request for hearing. If the respondent to a cease and desist order
32 contests the cease and desist order, the respondent shall request a
33 hearing conducted by the department within thirty days of the receipt of
34 the cease and desist order. Such a hearing shall be scheduled, and the
35 requesting party notified of the date, within fifteen days of the
36 receipt of the request for a hearing. If the respondent requests a stay
37 of the cease and desist order, the hearing officer shall determine
38 whether the cease and desist order should be stayed in whole or in part
39 within five working days of the request for a stay. The respondent may
40 file a written answer to the cease and desist order prior to the hear-
41 ing. A stenographic record of the hearing shall be made.
42 5. Conduct of hearing. The evidence in support of the cease and desist
43 order shall be presented by an attorney for the department. The respond-
44 ent may appear personally and may be represented by counsel at the hear-
45 ing, may produce witnesses and evidence in his or her behalf at the
46 hearing, may cross-examine witnesses and examine evidence produced
47 against him or her at the hearing, and may issue subpoenas in accordance
48 with section three hundred four of the state administrative procedure
49 act. The hearing officer shall not be bound by the rules of evidence,
50 but his or her determination that a violation of section sixty-five
51 hundred twelve or sixty-five hundred thirteen of this article has
52 occurred shall be based on a preponderance of the evidence. A hearing
53 which has been initiated shall not be discontinued because of the death
54 or incapacity of the hearing officer. In the event of a hearing offi-
55 cer's death or incapacity to serve, a new hearing officer shall be
56 designated by the department to continue the hearing. The new hearing
S. 4960--A 3
1 officer shall affirm in writing that he or she has read and considered
2 evidence and transcripts of the prior proceedings.
3 6. Results of hearing. The hearing officer designated by the depart-
4 ment shall render a written report which shall include (a) findings of
5 fact, (b) a determination on each violation alleged in the cease and
6 desist order, (c) a determination as to whether to accept, reject, or
7 modify any of the terms of the cease and desist order in whole or in
8 part, and (d) the civil penalty imposed, if any. A copy of the hearing
9 officer's written report shall be served upon the respondent with a
10 notice setting forth the respondent's rights to an administrative appeal
11 within ten days of the conclusion of the hearing.
12 7. Appeals. The decision of the hearing officer shall be final, except
13 that it may be appealed to a regents review committee within twenty days
14 of the receipt of the hearing officer's report. The initiation of an
15 appeal shall not in and of itself affect the validity or terms of the
16 cease and desist order. The regents review committee shall consist of
17 three members, at least one of whom shall be a regent. The review shall
18 be based on the transcript and the report of the hearing officer. The
19 respondent may appear at the meeting, and the regents review committee
20 may require the respondent to appear. The respondent may be represented
21 by counsel. The department shall notify the respondent at least ten days
22 before the meeting (a) of the time and place of the meeting, (b) of the
23 right to appear, (c) of the right to be represented by counsel, (d)
24 whether or not the respondent is required to appear, and (e) of such
25 other information as may be considered appropriate. After the meeting,
26 the regents review committee shall transmit a written report of its
27 review to the board of regents. The board of regents (i) shall consider
28 the transcript, the report of the hearing officer, and the report of the
29 regents review committee, (ii) shall decide whether the respondent has
30 violated each charge in the cease and desist order, (iii) shall decide
31 what penalties, if any, to impose as prescribed in this section, and
32 (iv) shall issue an order to carry out its decisions. Such decisions
33 shall require the affirmative vote of a majority of the members of the
34 board of regents. The order shall be served upon the respondent
35 personally or by certified mail to the respondent's last known address
36 and such service shall be effective as of the date of the personal
37 service or five days after mailing by certified mail. The decisions of
38 the board of regents under this section may be reviewed in a proceeding
39 pursuant to article seventy-eight of the civil practice law and rules
40 brought in the supreme court, Albany county. Such decisions shall not be
41 stayed or enjoined except upon application to such supreme court pursu-
42 ant to article sixty-three of the civil practice law and rules with
43 notice to the department and to the attorney general.
44 8. General enforcement of cease and desist order. In any case where
45 the cease and desist order is confirmed by the board of regents or where
46 the respondent does not request an administrative hearing within the
47 allotted time or does not appeal the decision of the hearing officer
48 within the allotted time, an action or proceeding may be filed in the
49 name of the state of New York seeking a restraining order, injunction,
50 appropriate writ, or judgment against any person who violates the terms
51 of the cease and desist order.
52 9. Special enforcement of civil monetary penalties. Provided that no
53 appeal is pending on the imposition of such civil penalty, in the event
54 such civil penalty imposed by the department remains unpaid, in whole or
55 in part, more than forty-five days after written demand for payment has
56 been sent by first class mail to the address of the respondent, a notice
S. 4960--A 4
1 of impending default judgment shall be sent by first class mail to the
2 respondent. The notice of impending default judgment shall advise the
3 respondent: (a) that a civil penalty was imposed on the respondent; (b)
4 the date the penalty was imposed; (c) the amount of the civil penalty;
5 (d) the amount of the civil penalty that remains unpaid as of the date
6 of the notice; (e) the violations for which the civil penalty was
7 imposed; and (f) that a judgment by default will be entered in the
8 supreme court, Albany county unless the department receives full payment
9 of all civil penalties due within twenty days of the date of the notice
10 of impending default judgment. If full payment shall not have been
11 received by the department within thirty days of mailing of the notice
12 of impending default judgment, the department shall proceed to enter
13 with such court a statement of the default judgment containing the
14 amount of the penalty or penalties remaining due and unpaid, along with
15 proof of mailing of the notice of impending default judgment. The filing
16 of such judgment shall have the full force and effect of a default judg-
17 ment duly docketed with such court pursuant to the civil practice law
18 and rules and shall in all respects be governed by that chapter and may
19 be enforced in the same manner and with the same effect as that provided
20 by law in respect to execution issued against property upon judgments of
21 a court of record. A judgment entered pursuant to this subdivision
22 shall remain in full force and effect for eight years notwithstanding
23 any other provision of law.
24 § 3. This act shall take effect immediately.