Guide to Statutes and Rules Relating to Hearings - Part 1


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New York Department of State

Introduction

The Office of Administrative Hearings conducts administrative hearings, in which the Office of General Counsel represents the department's Division of Licensing Services, to determine where discipline of licensees regulated by the department is warranted. This Guide to Statutes and Rules Relating to Hearings provides information to those who are respondents in a hearing and their attorneys. Included in the Guide are excerpts from the New York State Administrative Procedure Act and the Rules of the New York Department of State (19 NYCRR), and a summary of those rules.

Additional information may be obtained by writing to:

New York Department of State
Office of General Counsel
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231

Contents

• Summary of Hearing Rules of Procedure

• State Administrative Procedure Act Definitions (§ 102)

• Adjudicatory Proceedings

Hearings (§ 301)
Record (§ 302)
Presiding Officers (§ 303)
Powers of Presiding Officers (§ 304)
Disclosure (§ 305)
Evidence (§ 306)
Decisions, Determinations and Orders (§ 307)

• Licenses (§ 401)

• Representation (§ 501)

• 19 NYCRR Part 400 Hearing Rules of Procedure


Summary of Hearing Rules of Procedure

The New York Department of State's Rules of Procedure for Adjudicatory Proceedings are set forth in Part 400 of 19 NYCRR. The following is a summary of such rules:

  1. All hearings will be conducted in accordance with the State Administrative Procedure Act. Pertinent provisions are as follows:

    1. All hearings will be commenced on reasonable notice (generally 10 days under our statutes). The notice will apprise the respondent of matters asserted and of any statutes or rules involved. Parties may present written and/or oral argument on any issue.

    2. The department will make a record of all hearing proceedings including a transcript of the hearing and shall furnish a copy of the record or any part thereof to the respondent at cost. All parties have the usual rights of parties in civil proceedings, i.e., to examine and cross-examine witnesses, make objections, etc.

    3. The administrative law judge will preside over the hearing in a fair and impartial manner. Generally, an administrative law judge has the authority of any judge in a civil matter and may order discovery and depositions. The judge rules on the admissibility of evidence and is not bound by strict rules of evidence.

    4. The administrative law judge or other person assigned to render a decision does so by including findings of fact and conclusions of law or reasons for his/her decision. The judge will not consult with any party about his/her decision except upon notice to all parties.


  2. The rules require a decision to be made in the format of findings of fact and conclusions of law. Parties may propose findings of fact and the decision will contain a ruling on such findings.

  3. Subpoenas compelling attendance of witnesses or documents may be issued by the administrative law judge or any attorney duly admitted to practice in the State of New York.

  4. Motions may be made to dismiss the complaint upon failure of proof.

  5. Every person is entitled to representation and someone who is not a lawyer may represent a respondent. Every representative must file a notice in accordance with Section 166 of the New York State Executive Law on forms to be provided by the department.

  6. A maximum of two adjournments of a hearing may be granted and requests must be made by affidavit addressed to the administrative law judge and must be received no later than three working days prior to the date of the hearing.

  7. All adjudicatory proceedings must be finally disposed of within 150 days of the date of the hearing unless the hearing is adjourned by mutual consent or by request of the respondent; or the time is extended by mutual consent or the New York Secretary of State or administrative law judge makes a written declaration of necessity to extend citing his/her reasons therefor.

State Administrative Procedure Act

§ 102. Definitions

3. "Adjudicatory proceeding" means any activity which is not a rule making proceeding or an employee disciplinary action before an agency, except an administrative tribunal created by statute to hear or determine allegations of traffic infractions which may also be heard in a court of appropriate jurisdiction, in which a determination of the legal rights, duties or privileges of named parties thereto is required by law to be made only on a record and after an opportunity for a hearing.

4. "License" includes the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law.

5. "Licensing" includes any agency activity respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, recall, cancellation or amendment of a license.

6. "Person" means any individual, partnership, corporation, association, or public or private organization of any character other than an agency engaged in the particular rule making, declaratory ruling, or adjudication.

7. "Party" means any person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party; but nothing herein shall be construed to prevent an agency from admitting any person or agency as a party for limited purposes.


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