NY Educ L § 5003 (2021)
2021 New York Laws EDN - Education Title 6 - Special Schools and Instruction Article 101 - Licensed Private Career Schools and Certified English as a Second Language Schools 5003 - Disciplinary Actions, Hearings and Penalties.

§ 5003. Disciplinary  actions, hearings and penalties. 1. Disciplinary action. a. The commissioner for good cause, after affording a school  an opportunity  for  a hearing, may take disciplinary action as hereinafter provided against any school authorized to operate under this article.   b. Good cause shall include,  but  not  be  limited  to,  any  of  the following:  (1)  fraudulent  statements  or representations to the department, the public or any student in connection with any activity of the school;  (2) violation of any provision of this article or  regulation  of  the commissioner;  (3)  conviction  or  a  plea  of  no contest on the part of any owner, operator, director or teacher:  (A) of any of the following felonies defined in the penal law: bribery involving public servants; commercial bribery;  perjury  in  the  second degree;  rewarding  official misconduct; larceny, in connection with the provision of services or involving  the  theft  of  governmental  funds; offering  a  false  instrument  for filing, falsifying business records; tampering with public records; criminal usury;  scheme  to  defraud;  or defrauding the government; or  (B)  in  any  other  jurisdiction of an offense which is substantially similar  to  any  of  the  felonies  defined  in  clause  (A)  of   this subparagraph  and  for  which  a  sentence  to a term of imprisonment in excess of one year was  authorized  and  is  authorized  in  this  state regardless of whether such sentence was imposed; or  (4) incompetence of any owner or operator to operate a school.   c.  (1)  Any  person  who  believes  he or she has been aggrieved by a violation of this section, except a person aggrieved by the  actions  or omissions  of a candidate school, shall have the right to file a written complaint within: (A) two years of the alleged  violation;  or  (B)  one year  of  receiving  notification  from  the  higher  education services corporation or any other guarantee agency that the student has defaulted on a student loan payment; provided, however, that no complaint  may  be filed  after  three  years  from  the date of the alleged violation. The commissioner shall maintain a written record of each complaint  that  is made.  The  commissioner  shall  also  send  to  the  complainant a form acknowledging  the  complaint  and  requesting  further  information  if necessary  and  shall advise the director of the school that a complaint has been made and, where appropriate the nature of the complaint.  (2) The commissioner shall within  twenty  days  of  receipt  of  such written complaint commence an investigation of the alleged violation and shall within ninety days of the receipt of such written complaint, issue a  written  finding. The commissioner shall furnish such findings to the person who filed the complaint and to the chief operating officer of the school cited in the complaint. If the commissioner finds that there  has been   a   violation  of  this  section,  the  commissioner  shall  take appropriate action.  (3)  The  commissioner  may  initiate  an  investigation   without   a complaint.  (4)  Notwithstanding  the  provisions  of  subparagraph  one  of  this paragraph or any other provision of this  article  to  the  contrary,  a student  at  a  candidate  school shall have the right to file a written complaint from an alleged violation of the provisions of clause three of subparagraph (iv) of paragraph b of subdivision  four  of  section  five thousand one of this article that require disclosure of candidacy status and its implications and a signed attestation by the student, within two years  of  such  violation.  Upon  a  finding  that such a violation has occurred, the candidate school shall be required to provide a refund  of all  monies  and  fees  received  from  or  on  behalf  of  the student.  Appropriate action shall also be  taken  against  the  candidate  school pursuant  to  the  provisions  of  subparagraph  (iv)  of paragraph b of subdivision four of section five thousand one of this article.   2.  Hearing  procedures. a. Upon a finding that there is good cause to believe that a candidate school under  the  provisions  of  subparagraph (iv)  of paragraph b of subdivision four of section five thousand one of this article, or a licensed school,  or  an  officer,  agent,  employee, partner  or  teacher,  has  committed  a  violation of this article, the commissioner shall initiate proceedings by serving a notice  of  hearing upon each and every such party subject to the administrative action. The school  or  such  party  shall  be  given  reasonable notice of hearing, including the time, place, and nature of the  hearing  and  a  statement sufficiently   particular   to   give  notice  of  the  transactions  or occurrences intended to be proved, the material elements of  each  cause of  action  and  the  civil  penalties  and/or  administrative sanctions sought.   b. Opportunity shall be afforded to the party to respond  and  present evidence  and  argument  on the issues involved in the hearing including the right of cross examination. In a hearing, the school or  such  party shall  be accorded the right to have its representative appear in person or by or with counsel or other representative. Disposition may  be  made in any hearing by stipulation, agreed settlement, consent order, default or other informal method.   c.  (1)  The commissioner shall designate an impartial hearing officer to conduct the hearing, who shall be empowered to:  (A) administer oaths and affirmations; and  (B) regulate the course of the hearings, set the time  and  place  for continued  hearings,  and  fix  the  time for filing of briefs and other documents; and  (C) direct the school or such party to appear and confer  to  consider the simplification of the issues by consent; and  (D)  grant  a request for an adjournment of the hearing only upon good cause shown.  (2) The strict legal rules  of  evidence  shall  not  apply,  but  the decision shall be supported by substantial evidence in the record.   3.  Decision  after  hearing.  The  hearing officer shall make written findings of fact and conclusions of law, and  shall  also  recommend  in writing  to  the  commissioner a final decision including penalties. The hearing officer shall mail a copy  of  his  or  her  findings  of  fact, conclusions  of  law and recommended penalty to the party and his or her attorney, or representative.  The  commissioner  shall  make  the  final decision,  which  shall  be  based  exclusively  on  evidence  and other materials introduced at the hearing. If it is determined  that  a  party has  committed  a  violation, the commissioner shall issue a final order and  shall  impose  penalties  in  accordance  with  this  section.  The commissioner  shall  send by certified mail, return receipt requested, a copy of the final order to  the  party  and  his  or  her  attorney,  or representative.  The commissioner shall, at the request of the school or such party, furnish a copy of the transcript or any  part  thereof  upon payment of the cost thereof.   4.  Judicial  review.  Any  order  imposed under this section shall be subject to judicial review under  article  seventy-eight  of  the  civil practice  law  and  rules,  but no such determination shall be stayed or enjoined except upon application  to  the  court  after  notice  to  the commissioner.   5.  Enforcement  proceedings.  The attorney general, in his or her own capacity,  or  at  the  request  of  the  commissioner,  may  bring   an  appropriate  action or proceeding in any court of competent jurisdiction to recover a fine or otherwise enforce any provision of this article.   6.  Civil penalties and administrative sanctions. a. A hearing officer may recommend, and the commissioner may impose, a civil penalty  not  to exceed  three  thousand  five  hundred dollars for any violation of this article, including a school's failure to offer a course  or  program  as approved  by  the  commissioner.  In  the  case  of  a second or further violation committed within five years of  the  previous  violation,  the liability  shall  be  a  civil penalty not to exceed seven thousand five hundred dollars for each such violation.   b. Notwithstanding the provisions of paragraph a of this  subdivision, a hearing officer may recommend, and the commissioner may impose a civil penalty  not  to  exceed  seventy-five  thousand  dollars  or double the documented amount from which the school benefited, whichever is greater, for any of the following violations: (1) operation of a school without a license in violation of section five thousand one of this  article;  (2) operation  of  a  school  knowing  that  the  school's  license has been suspended or  revoked;  (3)  use  of  false,  misleading,  deceptive  or fraudulent  advertising;  (4) employment of recruiters on the basis of a commission, bonus or quota, except as authorized  by  the  commissioner; (5) directing or authorizing recruiters to offer guarantees of jobs upon completion  of  a course; (6) failure to make a tuition refund when such failure is part of a pattern of misconduct; (7) the offering of a course or program that has not been approved by the commissioner; (8) admitting students, who subsequently drop out, who were admitted in  violation  of the  admission  standards  established  by  the commissioner, where such admissions constitute a pattern of misconduct and  where  the  drop  out resulted  at  least  in part from such violation; (9) failure to provide the notice of discontinuance and the plan required by subdivision  seven of  section  five thousand one of this article; or (10) violation of any other provision of this article, or any rule or  regulation  promulgated pursuant  thereto,  when such violation constitutes part of a pattern of misconduct which significantly impairs the educational  quality  of  the program  or  programs  being  offered by the school. For each enumerated offense, a second or further  violation  committed  within  five  years, shall be subject to a civil penalty not to exceed one and one-half times the amount of the previous violation for each such violation.   c.  In  addition  to the penalties authorized in paragraphs a and b of this subdivision, a hearing officer may recommend and  the  commissioner may  impose  any  of the following administrative sanctions: (1) a cease and desist order;  (2)  a  mandatory  direction;  (3)  a  suspension  or revocation  of  a  license;  (4)  a  probation order; or (5) an order of restitution.   d. Penalty factors. In the recommendation of any  penalty,  a  hearing officer  shall,  at a minimum, give due consideration, where applicable, to the good faith of the violator and the gravity of the violation.   e. The commissioner may suspend a license upon the failure of a school to pay any fee, fine, penalty, settlement or assessment as  required  by this article unless such failure is determined by the commissioner to be for good cause.   f.  All  civil  penalties,  fines and settlements received after April first, nineteen hundred ninety shall accrue to the credit of the tuition reimbursement account established pursuant to section ninety-seven-hh of the state finance law.   7. Criminal penalties. In addition to any  other  penalties  elsewhere prescribed:   a.  Any  person  who  knowingly violates any of the provisions of this article  shall  be  guilty  of  a  class  B  misdemeanor  punishable  in  accordance with the penal law. If the conviction is for a second offense committed   within  five  years  of  the  first  conviction  under  this paragraph, such  person  shall  be  guilty  of  a  class  A  misdemeanor punishable in accordance with the penal law.   b.  Any person who knowingly (1) falsifies or destroys school or other business records relating to the operation of the school with intent  to defraud;  (2) fails to make a tuition refund as required by section five thousand two of this article with the intent to defraud  more  than  one person;  or  (3)  operates  a school without a valid license required by section five thousand one of this article shall be guilty of a  class  A misdemeanor punishable in accordance with the penal law.   c. Any person who, having been convicted within the past five years of failing  to  make  a  tuition refund in violation of subparagraph two of paragraph b of this subdivision, knowingly and intentionally engages  in a  scheme  constituting a systematic ongoing course of conduct involving the wrongful  withholding  of  refunds  in  violation  of  section  five thousand  two  of  this  article  with the intent to defraud ten or more persons, and so withholds tuition refunds  in  excess  of  one  thousand dollars,  shall  be  guilty of a class E felony punishable in accordance with the penal law.   d. Upon a determination that there exist reasonable grounds to believe that a violation of this article has been committed, or that  any  other crime  has  been  committed in connection with the operation of a school required to be licensed pursuant to this article, the commissioner shall refer such determination, and the information upon which it is based, to the attorney general  or  to  the  appropriate  district  attorney.  The attorney  general  or  a district attorney may bring an action on his or her own initiative.   8. Private right of action. A student injured by a violation  of  this article  may bring an action against the owner or operator of a licensed private career  school  for  actual  damages  or  one  hundred  dollars, whichever  is  greater. A court may, in its discretion, award reasonable attorney's fees to a prevailing plaintiff.