Guide to Statutes and Rules Relating to Hearings - Part 4

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Hearing Rules of Procedure

§ 400.1 Intent and purpose » § 400.8 Evidence and proof »
§ 400.2 Office of Administrative Hearings » § 400.9 Service of rules »
§ 400.3 Conduct of adjudicatory proceedings » § 400.10 Representation »
§ 400.4 Commencement of disciplinary proceedings » § 400.11 Adjournments »
§ 400.5 Subpoenas » § 400.12 Proposed findings of fact »
§ 400.6 Motions » § 400.13 Time periods »
§ 400.7 Affidavits »

§ 400.1 Intent and purpose.

The Secretary of State has authority under Article 3 of the State Administrative Procedure Act to provide for adjudicatory proceedings and appeals pertaining to matters within the Secretary's statutory jurisdiction. It is the intent and purpose of these regulations to afford all those appearing in any hearing subject to this part due process of law and an opportunity to be heard, while at the same time ensuring protection of the public health, safety and general welfare.

§ 400.2 Office of Administrative Hearings.

(a) There is hereby established within the Department of State an office of administrative hearings which shall conduct all adjudicatory proceedings which devolve upon the Secretary of State by requirement of statute. All adjudicatory proceedings shall be conducted by the office of administrative hearings through the service of administrative law judges who will have all the power and authority of presiding officers or hearing officers as defined by the State Administrative Procedure Act (SAPA), and other pertinent statutes, and these regulations.

(b) All administrative law judges shall be licensed to practice law and shall not serve in any other capacity within the Department of State.

(c) For administrative and personnel purposes the administrative law judges shall report directly to the Secretary of State or the Secretary of State's designee.

(d) The fact that an administrative law judge's rulings, decisions or other actions favor or disfavor the Department of State or any other party shall not be considered in establishing the administrative law judge's salary, promotion, benefits, working conditions, case assignments or opportunities for employment or promotion, and shall not be the cause of any disciplinary proceedings, removal, reassignment, reclassification, or relocation. There shall not be established any quotas or similar expectations for any administrative law judge that relate in any way to whether the administrative law judge's rulings, decisions or other actions favor or disfavor the Department of State. The work of the administrative law judge shall be evaluated only on the following general areas of performance: competence, objectivity, fairness, productivity, diligence and temperament.

(e) In any pending adjudicatory proceeding, the administrative law judge may not be ordered or otherwise directed to make any finding of fact, to reach any conclusion of law, or to make or recommend any specific disposition of a charge, allegation, question or issue.

(f) Unless otherwise authorized by law, an administrative law judge shall not communicate in connection with any issue that relates in any way to the merits of an adjudicatory proceeding pending before the administrative law judge with any person except upon notice and opportunity for all parties to participate, except that an administrative law judge may consult on questions of law and ministerial matters with other administrative law judges and support staff of the office, provided that such other administrative law judges or support staff have not been engaged in investigative or prosecutorial functions in connection with the adjudicatory proceeding under consideration or a factually related adjudicatory proceeding or would not be disqualified pursuant to (g), below.

(g) An administrative law judge shall not participate in any proceeding to which he or she is a party; in which he or she has been attorney, counsel or representative; in which he or she is interested; or if he or she is related by consanguinity or affinity to any party to the controversy. An administrative law judge shall recuse him or herself from any case in which he or she believes that there is, or there may be perceived to be, a conflict of interest.

(h) Matters shall be referred by other divisions of the Department of State to the office of administrative hearings for hearing.

(i) The administrative law judge assigned shall set the location and time at which a hearing, and any adjournments or continuations thereof, will be held. The office of administrative hearings shall prepare the notice of hearing and transmit it to the person assigned to litigate the matter for proper service. Notices of adjournment or continuation shall be transmitted directly to the parties by the office of administrative hearings.

(j) After the hearing the administrative law judge shall issue a decision based on findings of fact and conclusions of law. Such decision shall be final and binding when issued unless an appeal is taken pursuant to (k), below.

(k) Any of the parties may appeal the decision or the grant or denial of an interim order of suspension to the Secretary of State within thirty calendar days of receipt. Such an appeal shall be made by filing with the Secretary of State, and serving on the other party or parties, a written memorandum stating the appellant's arguments and setting forth specifically the questions of procedure, fact, law or policy to which exceptions are taken, identifying that part of the administrative law judge's decision and order to which objection is made, specifically designating the portions of the record relied upon, and stating the grounds for exceptions. A party upon whom an adverse party has served an appeal may file and serve a memorandum in opposition and cross-appeal within thirty calendar days after such service. A response to a cross-appeal may be filed and served within fifteen calendar days after service of the cross-appeal. The failure of any party to respond shall not be deemed a waiver or admission. The record on appeal shall consist of the evidentiary exhibits from and transcript of the hearing, and the memorandums of appeal, opposition, and cross-appeal. The Secretary of State or his or her designee may, in his or her discretion, stay the effective date of the decision, and shall, based solely on the record on appeal unless he or she directs in his or her sole discretion that there be oral argument, either confirm the decision in writing, make a written, superseding decision including a statement as to why he or she has not confirmed the administrative law judge's decision, or remand the matter to the administrative judge for additional proceedings.

(l) Following the administrative law judge's decision, and pending the filing of an appeal therefrom, any party may immediately apply to the Secretary or the Secretary's designee for a stay pending determination of the appeal. The application for a stay shall be in writing and based upon evidence contained in the record and shall be served on opposing parties who shall have the opportunity to rebut the application in writing within two business days of receipt. The Secretary or the Secretary's designee shall forthwith rule on the application, and may grant the stay and reserve decision on the appeal; or may deny the stay and either reach a decision on the merits of the appeal or reserve such decision.

§ 400.3 Conduct of adjudicatory proceedings.

All adjudicatory proceedings will be conducted under the rules enunciated by articles 3, 4 and 5 of the State Administrative Procedure Act, the definitions of the State Administrative Procedure Act pertaining thereto, any other licensing statute under the jurisdiction of the Secretary of State, the Civil Practice Law and Rules as the same may be reasonably be applied and the Constitution of the State of New York as these statutes and Constitution are now stated or may be amended in the future. In all instances, due process of law will be observed. An administrative law judge shall have all the authority which the Secretary of State may grant pursuant to the State Administrative Procedure Act or any other pertinent statute, including, but without limitation, the authority to direct disclosure under section 305 of the State Administrative Procedure Act.
§ 400.4 Commencement of disciplinary proceedings.

(a) Every adjudicatory proceeding which may result in a determination to revoke or suspend a license or to fine or reprimand a licensee will be commenced by the service of a notice of hearing together with a statement of charges (also known as a complaint), which shall consist of plain and concise statement which shall sufficiently give the administrative law judge and the respondent notice of the alleged misconduct of incompetence. Notice of hearing and statement of charges (or complaint) shall be communicated in any manner permitted by the applicable regulatory statute or the Civil Practice Law and Rules. Respondent may, at his option, serve an answer denying such charges and interposing affirmative defenses, if any. Absent an answer, all charges are deemed denied and all rights are reserved.

(b) The Department of State shall, before making a final determination to deny an application for a license, notify the applicant in writing of the reasons for such proposed denial and shall afford the applicant an opportunity to be heard in person or by counsel prior to denial of the application. Such notification shall be served personally or by certified mail or in any manner authorized by the Civil Practice Law and Rules. If the applicant is a real estate salesman or has applied to become a salesman, the department shall also notify the broker with whom such salesman is associated, or with whom such salesman or applicant is about to become associated, of such proposed denial. If a hearing is requested, such hearing shall be held at such time and place as the department shall prescribe. If the applicant fails to make a written request for a hearing within 35 days after receipt of such notification, then the notification of denial shall become the final determination of the department. Upon receipt of such demand, and adjudicatory proceeding will be commenced in the manner set forth in subdivision (a) of this section, except that the reasons for denial will be set forth in the stead of charges.
§ 400.5 Subpoenas.

Subpoenas may be issued by the administrative law judge or any attorney for a party who has been duly admitted to the practice of law in the State of New York. Subpoenas shall be served in any manner permitted by the Civil Practice Law and Rules unless otherwise provided by applicable statutes administered by this department.
§ 400.6 Motions.

(a) A motion to dismiss the complaint or statement of charges for failure of proof may be made at the conclusion of the direct case presented by the complaining division of the Department of State. The administrative law judge may make a determination:
(1) granting the motion;

(2) denying the motion and continuing the hearing; or

(3) reserving decision on the motion and continuing the hearing.
(b) A denial of a motion made under this section is not a final disposition and a right to appeal to the Secretary of State or to commence a proceeding under article 78 of the Civil Practice Law and Rules shall not accrue until a final decision on the merits is rendered.
§ 400.7 Affidavits.

When a verified statement is required or deemed desirable by any party, it shall be sufficient for the deponent to subscribe a statement at the end thereof that the "foregoing statement is affirmed under penalties of perjury." A statement verified before a notary public will be equally acceptable.
§ 400.8 Evidence and proof.

The strict rules of evidence do not apply with respect to administrative adjudicatory proceedings.
§ 400.9 Service of rules.

Every notice of hearing served shall be served with a copy of these rules, a copy of articles 3, 4 and 5 of the State Administrative Procedure Act and relevant definitions under section 102 of the State Administrative Procedure Act. A summary of these rules will be prepared and made available to the public on request and served with a notice of hearing on any respondent.
§ 400.10 Representation.

Any person compelled to appear in person or who voluntarily appears before the agency shall be accorded the right to be accompanied, represented and advised by counsel. In a proceeding before the agency, every party or person shall be accorded the right to appear in person or by or with counsel. Nothing in this section shall be construed either to grant or deny to any person who is not a lawyer the right to appear for or represent others before the agency. In accordance with section 166 of the Executive Law, any such representative will file a notice of appearance with the administrative law judge on forms provided by the Department of State and state whether a fee is being paid therefore.
§ 400.11 Adjournments.

(a) Adjournments of adjudicatory hearings will be granted only for good cause, and no party shall be granted more than two adjournments.

(b) Requests for adjournment must be made by written affidavit addressed to the presiding officer, and must be received at the office of the Department of State in which the presiding officer maintains his regular office no later than three business days prior to the scheduled date of hearing. The affidavit must contain sufficient details to explain the reason for the request so as to enable the presiding officer to rule thereon.
§ 400.12 Proposed findings of fact.

Any party may submit proposed findings of fact within time limitations set by the administrative law judge. Such findings of fact shall be captioned, entitled as such, shall be consecutively numbered and shall be typed legibly on plain, white bond, standard weight paper, 8½ x 11 inches in size. Such proposed findings of fact shall recite basic facts and not evidentiary facts and shall not be conclusions of law. A basic fact would be "John Jones visited Syracuse," and not "John Jones testified that he visited Syracuse," which is an evidentiary fact. A conclusion of law would be "John Jones has demonstrated untrustworthiness within the meaning of section 441-c of the Real Property Law." In general, it is expected that the complaint will allege the basic facts which would otherwise be contained in a statement of proposed findings of fact. In accordance with section 301(1) of the State Administrative Procedure Act, the person assigned to render a decision will rule on each finding of fact. Such decision maker will do so by marking the instrument setting forth the proposed findings of fact a part of the decision and noting in the margin thereof the ruling, i.e., "Found," "Not Found," "Irrelevant," "Evidentiary," "Conclusion of Law," which rulings may be abbreviated meaningfully. The body of the decision will contain such findings of fact as the decision maker deems relevant, but need not be expressed in the same language as presented in the proposed findings.
§ 400.13 Time periods.

(a) Except by consent of the parties or otherwise determined under subdivision (c) of this section, every adjudicatory proceeding under the jurisdiction of the Secretary of State shall be brought to completion within 150 days of the date of the hearing specified in the service of the notice of hearing. An adjournment or continuance granted at the request of respondent or by mutual consent of the parties will extend the period of 150 days in which the Secretary of State must act by the length of time the adjournment or continuance is granted.

(b) With respect to applications for a license or a commission, the Secretary of State shall grant or deny such application within 150 days of the date of the submission of a completed application. If the application is denied, the Secretary of State shall state the reasons for denial in writing by letter to the applicant and offer the applicant an opportunity for a hearing by demanding the same in writing within 30 days of the date of the letter of denial. If a hearing is demanded, a decision shall be issued within 150 days of the receipt of the demand.

(c) The Secretary of State or an administrative law judge may, prior to the expiration period, extend the time periods established by subdivision (a) of this section by making a determination in writing that the adjudicatory proceeding cannot be completed within 150 days and stating sufficient reasons therefor. Such an extension shall be for no longer than an additional 120 days. Such determination shall be promptly mailed to all parties.

(d) A failure of the Secretary of State to observe the time limitations established by this section, or the failure of an administrative law judge to make the determination required by subdivision (c) of this section shall be reviewable under article 78 of the Civil Practice Law and Rules in a proceeding in the nature of mandamus.