NOTE: This is only a summary guide. It is not a complete or formal listing of all applicable rules and regulations. For complete information, you should consult the published rules and regulations governing the Department's administrative tribunal and/or an attorney.
What is an administrative hearing?
When the Department of Consumer Affairs has charged a business with a violation of the law, the business operator will receive a notice of hearing from DCA. That means that an administrative hearing has been scheduled where all the parties in the case will be heard.
If you have received a notice of hearing from the Department of Consumer Affairs, you may settle that charge (possibly at a reduced fine amount), or appear at the administrative hearing.
Hearings are held at the DCA Adjudication Division, located at 66 John Street, 11th floor, New York, NY 10038.
Hearings are held in front of Administrative Law Judges, who conduct the hearing and take testimony and other evidence from all parties involved. These judges are familiar with Consumer Affairs rules and regulations and are charged with being fair and unbiased.
Each of the parties will be able to present their side of the story, and to cross-examine any opposing witness. The Judge may also ask questions of each witness. The Judge records the hearing on audiotape.
If the Judge upholds the violation charge(s), a business can be fined and/or have its DCA license suspended or revoked.
Choosing to settle
You may decide that settling a violation, instead of opting for a hearing, is the right choice for you. Frequently, settling a violation results in a lower fine than may be imposed by the Judge if you go to hearing and are found guilty.
In addition, many matters can be settled by mail, without ever having to appear at DCA.
In many cases that do not involve a consumer complainant, DCA mails a pleading letter to the respondent business before the scheduled hearing date. The pleading letter states the settlement amount of the fine (and compares it to the maximum fine amount that may be imposed if the respondent goes to the hearing and is found guilty). This letter also includes information as to how to pay the fine by mail.
The business need not appear at the hearing if it pays the fine by the date stated in the pleading letter.
If you want to settle a violation but did not receive such a pleading letter, you can visit the DCA Adjudication Division between 9 A.M. and 4:30 P.M. at the 11th floor of 66 John Street in Manhattan. Ask to see a Settlement Officer.
Some parties to a case choose to settle after meeting with a Settlement Officer at DCA, or after a conversation with the Judge. Before the start of an administrative hearing, a Settlement Officer may ask to meet with you, or the Administrative Law Judge may ask the parties involved in the dispute if they can resolve the action without going through a hearing.
Written settlement agreement
Parties often decide to enter into a written settlement agreement that defines the duties of each party. For example, a respondent business may agree to perform some more work or refund money, while a consumer complainant might agree to return a used car or pay the balance due on a contract.
If a business that signs such a settlement agreement then fails to comply with its terms, it will be subject to additional fines and/or license suspension or revocation by DCA.
See a Settlement Officer
A business can resolve a violation in person, whether or not it has received a pleading letter. Before the scheduled hearing date, send a representative, either a corporate principal or an authorized agent, to DCA to see a Settlement Officer. The agent must present the Settlement Officer with a notarized Affidavit of Authority to Act on behalf of the company. (Blank affidavits are available from the DCA Adjudication Division, 66 John Street, 11th floor, New York, NY 10038, or may be downloaded from www.nyc.gov/consumers.)
To settle the violation, the corporate principal or authorized agent will acknowledge the violation, promise not to repeat it, and agree to pay an assessed fine by a specified date.
Consumer Affairs licenses can be suspended if licensed businesses cited for violations fail to pay by the agreed-upon date.
Fines for unlicensed activity accrue on a daily basis, until the fine is paid. Businesses cited for unlicensed activity are advised to see a Settlement Officer immediately.
If the parties cannot reach a settlement, the case will proceed to a hearing.
If your business has been charged with one or more violations, you should read the law(s) and rule(s) that you are charged with violating. If you are charged with engaging in unlicensed activity, ceasing the activity immediately (and being able to prove that you have done so) will minimize the amount of the fine you will have to pay if the Judge rules against you.
Although it is not required, you may bring a lawyer with you to the hearing. While the Judge conducts these hearings using basic rules of law and courtroom decorum, he or she does not insist on the use of formal rules of evidence. Thus, you may also choose to represent yourself at these hearings.
Collect all the evidence that could help you prove your case or defense. If you are uncertain whether a piece of evidence would be helpful, bring it to the hearing anyway.
Relevant evidence may include:
Before you come to the hearing, review the facts of your case, including important dates, names, and details. Be prepared to present your side of the case to the Administrative Law Judge in an orderly fashion.
- Your testimony
- Witness testimony
- Canceled checks
Organize your evidence to support your side of the case. For example:
If the complaint involves a contract provision, you should bring the contract to the hearing and refer to it when you make your presentation.
If the charges involve the quality of the work performed, you may wish to bring photographs of that work with applicable dates, and refer to them during your presentation. You may also wish to bring in qualified estimates for repair.
You may send any other party a written discovery request. This requires the other party (or parties) to send you the names of any witnesses they intend to call at the hearing, and documents they will submit.
If you choose to send a discovery request, note that the other party (or parties) must receive your request at least five business days before the hearing. You should receive your answer at least two days before the hearing.
If you receive a discovery request from the opposing party, you must send copies of all the material you provide in response to:
Director of Adjudication
New York City Department of Consumer Affairs
66 John Street, 11th floor
New York NY 10038
The Director of Adjudication and the requesting party must receive these documents at least two business days before the hearing. Finally, bring the original and two extra copies of any document you intend to present at the hearing.
You will also have to furnish the opposing parties with a copy of every item given to the Administrative Law Judge.
The administrative hearing is an informal proceeding, but certain procedures are followed. The Administrative Law Judge will make an official tape recording of the hearing. You should speak clearly and only when it is your turn.
In the normal order of testimony the complainant's side goes first. Serving as a witness, the complainant will tell his/her story and/or answer questions from a DCA representative and/or the Judge. This is called direct testimony.
Then, under cross-examination, the respondent party or its lawyer may ask the witness questions, as may the Judge. This procedure is repeated for all the witnesses on the complainant's side.
The same process takes place when the respondent business presents its case. Since the Administrative Law Judge controls the hearing, the Judge can alter the order of testimony if he or she deems it appropriate.
The party charged with a violation does not bear the burden of proof. This agency (or the consumer in his or her case) must prove its case based on the evidence presented to the Judge.
All parties to a hearing will be expected to conduct themselves with a calm and respectful demeanor.
The case will not be decided on the day of the hearing. The Judge will issue a written decision after a complete review of the hearing proceedings and the evidence. Do not call the Administrative Law Judge. A copy of the decision will be mailed to all parties. All administrative decisions by DCA dating to January 1, 2003 are available on the CityAdmin Web site.
If you can't make the hearing
If a party fails to appear at the hearing, the Judge may issue a default decision against that party. Default decisions can result in fines and/or license suspension or revocation.
If you want to change a hearing date, you must make an adjournment request in writing, serve a copy on all opposing parties, and get it to the Adjudication Division at least three business days before the scheduled hearing date. If you make an adjournment request less than three business days before the scheduled hearing date, it must be accompanied by documentary proof of an emergency justifying the late request. If you are not notified by the Adjudication Division that your request has been granted, you or a representative must appear at the hearing.
Motion to vacate
The absent party has 15 calendar days following the receipt of the default decision to file a written motion to vacate the default decision.
This motion must be made in writing and addressed to Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11th floor, New York, NY 10038.
A copy of this motion also must be served on the opposing party. The motion should state the reason for the party's absence, and include a sworn statement answering the charges alleged in the notice of violation. A check or money order for $25 payable to the Department of Consumer Affairs must also be included.
Parties who are dissatisfied with all or part of a Judge's hearing decision or default decision may choose to file an Appeal or Motion to Vacate with the Director of Adjudication by following the instructions set forth at the end of the decision.
What to include in your appeal letter
You should list any mistakes or errors that you believe the Administrative Law Judge made in issuing the decision, and what changes you would like made to correct the decision. If you have any new evidence that was not available at the time of the hearing, state both what the new evidence is, and why it was not available at the time of the hearing.
You must furnish the opposing party with a copy of your appeal letter before or at the same time you submit it to the Director of Adjudication. Opposing parties then have the opportunity to respond in writing.
An appeal fee in the form of a check or money order for $25 made out to the Department of Consumer Affairs (non-refundable) must be included with your appeal letter.
If the party filing the appeal or motion to vacate had been ordered by the Administrative Law Judge to pay restitution to another party or parties, the appealing (or moving) party must include the amount of the restitution along with the motion to vacate or the letter of appeal. DCA will hold such payment in escrow, pending the outcome of the motion to vacate or the appeal.
If the party filing an appeal had been ordered by the Administrative Law Judge to pay a fine, the party must submit, along with the appeal letter, a check or money order made payable to the Department of Consumer Affairs for the amount of the fine.
If the party cannot pay the fine, then that party has two options: enter into a payment agreement or apply for a financial hardship waiver. A party entering into a payment agreement is given the opportunity to pay the fine in smaller installments with interest, over a maximum time period of six months.
The appeal will not be reviewed until the entire amount of the fine has been paid. If the appealing party does not have the means to pay the fine, they can instead apply for a financial hardship waiver.
This application requests that the Director of Adjudication waive the requirement that the fine be paid in order for the appeal to be considered. Such waiver application must include, and be supported by, evidence of financial hardship, including the party's most recent tax returns.
Such waivers may be granted at the discretion of the Director of Adjudication. Of course, even if a waiver is granted, should the appealing party then lose their appeal, they will be required to pay the ordered fine amount.
If a waiver application is denied, the respondent will be notified. If the respondent wishes to proceed with the appeal anyway, they will be given 15 days from the date of issuance of the denial to submit payment of the fine.
If a party chooses not to appeal within 30 days of receiving the hearing decision, that decision becomes final. If a party does appeal, then once the Director of Adjudication reviews and decides the appeal, that determination is considered a final agency action.
Any request for further review of a final agency action would then have to be brought to the New York State Supreme Court in an Article 78 proceeding. Article 78 proceedings are used to challenge action by agencies and officers of state and local government. The Department of Consumer Affairs cannot provide advice to parties contemplating bringing suit against it.