N.Y. Comp. Codes R. & Regs. Tit. 19 § 220.4 - Enforcement Procedures
(a) When
the department has reason to believe a telemarketer has engaged in repeated
unlawful acts that violate section
399-z of
the General Business Law or this Part, or in connection with an administrative
hearing initiated pursuant to subdivision (f) of this section, the department
may request in writing the production of relevant documents and records as part
of its investigation. If the person upon whom such request was made fails to
produce the documents or records within 30 days after the date of the request,
the department may issue and serve subpoenas to compel the production of such
documents and records. If any person shall refuse to comply with a subpoena
issued under this section, the department may petition a court of competent
jurisdiction to enforce the subpoena and such sanctions as the court may
direct.
(b) Upon allegation(s) of
non-compliance with applicable law, or upon its own initiative, the department
may conduct an inquiry into any potential violation. If the department finds
any grounds to indicate that one or more violations may have occurred, the
department may, as the public interest demands, initiate an adjudicatory
proceeding by sending a notice of apparent liability to the alleged violator
seeking a response.
(c) The
department shall serve a copy of the notice of apparent liability by certified
and regular mail to the last known business address of the alleged violator, or
through any means authorized by the Civil Practice Laws and Rules and the
Business Corporation Law. Mailing of the notice shall be deemed receipt
thereof.
(d) The alleged violator
shall respond to the notice no later than 35 days from the date on which the
notice was mailed or otherwise served and shall provide any objection to the
facts or law as alleged in the notice.
(e) The department will conduct a review of
the response provided by the alleged violator and mail its decision within 60
days of receipt of the response. Mailing of the decision shall be deemed
receipt thereof.
(f) If the alleged
violator disputes the department's decision issued in accordance with
subdivision (e) of this section, such violator may file a written request for
an administrative hearing within 35 days of service of the decision. The
administrative hearing shall be subject to article three of the State
Administrative Procedure Act and Part 400 of this Title, with the exception of
the appeal provisions set forth in subdivisions (j), (k) and (l) of section
400.2 of this Title.
(g) If the alleged violator fails to respond
to the notice of apparent liability served in accordance with subdivision (c)
of this section within 35 days after the notice has been mailed, or fails to
request an administrative hearing in writing within 35 days of service of the
decision issued by the department in accordance with subdivision (e) of this
section, the notice of apparent liability or decision of the department is
deemed the final decision and the alleged violator shall remit to the
department a fine payable to the ''New York State Department of State, Division
of Consumer Protection,'' in the manner specified in the notice of apparent
liability or decision, as applicable, within 10 days of the date upon which the
decision has become final.
(h) If
an administrative hearing is requested in accordance with subdivision (f) of
this section, the department shall stay any fine pending the decision of such
hearing .
(i) During the hearing
proceeding, the department may establish evidentiary rebuttable
presumption(s).
(j) Any facts or
evidence received by the department may be used in any proceeding and shall be
afforded appropriate consideration by the presiding officer. All evidence shall
be kept in the custody of the presiding officer.
(k) Where it is determined after the
administrative hearing that the alleged violator has violated one or more
provisions of this Part or section
399-z of
the General Business Law, the presiding officer may assess a fine not to exceed
the maximum amount provided for by section
399-z of
the General Business Law for each violation.
(l) If the alleged violator requests an
administrative hearing pursuant to subdivision (f) of this section and a
hearing is held, the administrative hearing decision shall constitute the
department's final decision. Parties found in violation of the law shall remit
to the department any fine assessed pursuant to subdivision (k) of this
section, payable to the ''New York State Department of State, Division of
Consumer Protection,'' within 10 days of the receipt of such
decision.
(m) An aggrieved party
shall have the right to challenge any final agency determination by filing a
petition pursuant to Article 78 of the Civil Practice Law and Rules.
Notes
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