NY Veh & Traf L § 398-I (2021)
2021 New York Laws VAT - Vehicle and Traffic Title 3 - Safety Responsibility; Financial Security; Equipment; Inspection; Size and Weight; and Other Provisions Article 12-A - Motor Vehicle Repair Shop Registration Act 398-I - Unregistered Operation; Procedures and Penalties.

§  398-i.  Unregistered  operation;  procedures  and penalties. 1. The commissioner or any person deputized by him shall hear and determine any allegation that a person  has  operated  a  repair  shop  without  being registered  as  required  by  subdivision  one  of section three hundred ninety-eight-c of this chapter. Upon a determination that a  person  has so  operated,  the  commissioner or person deputized by him shall assess civil penalties as provided  in  subdivisions  two  and  three  of  this section.   2.  Except as provided in subdivision three, any person who operates a repair shop without being registered shall be required  to  pay  to  the people of this state a civil penalty in the sum of one thousand dollars. However, any such person against whom such penalty has been assessed may avoid  all  but  five  hundred  dollars  of  such penalty by obtaining a registration as required by this article, provided that application  for such registration is made not more than ten days after the imposition of such penalty.   3.  (a)  Any  person  who operates a repair shop while his repair shop registration is revoked or suspended, shall pay to the  people  of  this state  a  civil  penalty  in the sum of one thousand dollars. Such civil penalty may not be avoided.  (b) Any person who operates a repair shop without being registered  as required  by  subdivision one of section three hundred ninety-eight-c of this chapter who  has  previously  had  a  civil  penalty  assessed  for unregistered  operation  shall  pay  to the people of this state a civil penalty in the sum of one thousand dollars.  Such civil penalty may  not be avoided.   4.  (a)  If  it is determined that a person has operated a repair shop without being registered as required by this article, such determination may be appealed to the review  board  established  pursuant  to  section three  hundred ninety-eight-f of this chapter. The procedure established in such section shall apply to such  appeals  provided  that  no  appeal shall  be  accepted  or  determined by the review board unless the civil penalty assessed against such person has  been  paid  as  prescribed  in subdivision two of this section.  (b)  The  requirement  that the civil penalty be paid before an appeal can be accepted or determined by the review board shall not apply to  an appeal   by  a  repair  shop  from  a  determination  made  pursuant  to subdivision three of this section.  (c)  If the review board finds that the person has not been  operating a repair shop without being registered, any civil penalty which has been paid  shall  be  refunded, any premises ordered to be sealed pursuant to subdivision five-a of this section shall be unsealed, and if such  board determines  that  registration  as  a  repair shop is not required and a registration has been obtained to avoid the civil penalty assessed,  the registration  shall  be cancelled and, notwithstanding the provisions of paragraph  (a)  of  subdivision   three   of   section   three   hundred ninety-eight-c  of  this  chapter,  all  fees paid for such registration shall be refunded.   5. Civil penalties assessed under this section shall be  paid  to  the commissioner  for  deposit  into  the  state  treasury, and unpaid civil penalties may be recovered by the commissioner in a civil action in  the name  of  the commissioner. In addition, as an alternative to such civil action and provided that no proceeding for judicial review shall then be pending and the time  for  initiation  of  such  proceeding  shall  have expired,  the  commissioner may file with the county clerk of the county in which the registrant is located a final  order  of  the  commissioner containing  the amount of the penalty assessed. The filing of such final order shall have the full force and effect of a judgment  duly  docketed  in  the  office of such clerk and may be enforced in the same manner and with the same effect as that provided by law in  respect  to  executions issued against property upon judgments of a court of record.   5-a.  Sealing  of the premises. (a) In addition to any other penalties set forth in this article, the commissioner, after notice to  the  owner of  the  premises and the owner of the motor vehicle repair shop and the opportunity for a hearing, shall be authorized to  (i) order the sealing of  the  premises  upon  which  any  person  has operated  a motor vehicle repair shop without being registered, provided that such premises is primarily used for  such  activity  and  provided, further, that the commissioner shall not seal any dwelling unit or other space lawfully used solely for residential purposes;  (ii)  order that any devices, items or goods utilized in the operation of a motor vehicle repair shop and relating to such activity for which a registration for  operation  is  required  but  has  not  been  obtained pursuant  to  the provisions of this article shall be removed, sealed or otherwise made inoperable; and  (iii) order the removal of motor vehicles on the premises to a garage, pound or other place of safety. For purposes of this article,  the  term "owner  of  the  premises"  shall  mean  the  owner,  lessor,  lessee or mortgagee of the building, erection  or  place  wherein  any  person  is operating an unregistered motor vehicle repair shop. The person in whose name  the  real  estate  affected  by  the orders of the commissioner is recorded in the office of the city register or the county clerk, as  the case may be, shall be presumed to be the owner thereof.  (b)  The  lack  of  knowledge  of, acquiescence or participation in or responsibility for, the  operation  of  an  unregistered  motor  vehicle repair  shop,  on the part of the owner of the premises and/or the owner of the motor vehicle repair shop, shall not be a defense by such owners.  (c) Orders of the commissioner issued pursuant  to  paragraph  (a)  of this  subdivision  shall  be  conspicuously  posted at the premises upon which unlawful operation occurred.  (d) An order of the commissioner issued pursuant to paragraph  (a)  of this  subdivision  shall be stayed with respect to any person who, prior to service of the notice required by such  paragraph,  has  submitted  a complete  application,  in  proper form and accompanied by the requisite fee, for a certificate of registration to operate a motor vehicle repair shop or a renewal thereof, while the application is pending.  (e) Ten days  after  the  posting  of  an  order  issued  pursuant  to paragraph (a) of this subdivision, and upon the written directive of the commissioner,  officers  and  employees  of  the  department  and police officers of any appropriate law enforcement agency shall  be  authorized to act upon and enforce such order. The commissioner may take such steps as  are lawful and necessary to prevent the removal from the premises of any devices, items, goods or personal property used in the conduct of  a motor vehicle repair shop business during such ten day period.  (f)  (i)  Any devices, items, goods or motor vehicles removed pursuant to the provisions of subparagraphs (ii) and (iii) of  paragraph  (a)  of this  subdivision  shall  be stored in a garage, pound or other place of safety and the owner or other person lawfully entitled to the possession of such devices, items, goods or motor  vehicles  may  be  charged  with reasonable costs for removal and storage payable prior to the release of such devices, items, goods or motor vehicles to such owner or such other person.  (ii)   The  commissioner  shall,  by  first  class  mail,  notify  the registered owner of any motor vehicle removed pursuant  to  subparagraph (iii)  of paragraph (a) of this subdivision within five business days of  the removal, of the location of  such  motor  vehicle  and  the  actions necessary to recover such motor vehicle.  (iii)  The  owner  or  other  person  lawfully entitled to reclaim the devices, items, goods or motor vehicles removed pursuant to this section shall reclaim such devices, items, goods or motor vehicles within ninety days of their removal, or such devices, items, goods or  motor  vehicles shall be subject to forfeiture upon notice and judicial determination in accordance  with the provisions of law. Upon forfeiture the commissioner shall, upon a public notice of at least five days, sell  such  forfeited devices,  items,  goods  or  motor  vehicles  at  public sale.   The net proceeds of such sale, after deduction of the lawful expenses  incurred, shall be paid into the general fund.  (iv)  Lessors  of  devices,  items, goods or personal property removed pursuant to the provisions of subparagraph (ii) of paragraph (a) of this subdivision  may  reclaim  leased  devices,  items,  goods  or  personal property  upon  presentment  of  proof  that the lessor is not otherwise involved, directly or indirectly, in the ownership or operation of  such motor  vehicle repair shop and that the lessee is in breach of the lease or in default of payments, and upon  payment  of  any  reasonable  costs imposed  for  the  removal  and storage of such devices, items, goods or personal property pursuant to this subdivision.  (g) The  commissioner  shall  order  any  premises  which  are  sealed pursuant to paragraph (a) of this subdivision to be unsealed upon:  (i) payment of any and all fines, penalties and restitution; and  (ii)  presentment  of  proof  that  the required registration has been obtained for operation of a motor vehicle repair shop on  the  premises, or proof satisfactory to the commissioner, submitted by the owner of the premises,  that  such  premises  will  not  be used in violation of this article.  (h) In addition to any fines, penalties or actions taken with  respect to  a  motor  vehicle  repair  shop and the persons operating, providing equipment or otherwise involved in the  operations  of  such  shop,  the commissioner  may  also  take  action  with  respect to the owner of the premises where such shop has operated or is  operating  as  provided  in this paragraph. Upon a finding by the commissioner, after notice and the opportunity  for  a  hearing,  that an unregistered motor vehicle repair shop has been operated at the same premises  on  two  or  more  separate occasions  within  eighteen  months  resulting  in  two or more separate determinations by the commissioner of a violation of this  section  with respect  to  such premises, and that the owner of the premises knowingly allowed such operation, the commissioner may impose upon such  owner  of the premises a civil penalty in an amount not to exceed fifteen thousand dollars,  or may order the sealing of the premises for not more than one hundred eighty days, or both such actions.  (i) Nothing contained herein  shall  be  construed  to  authorize  the commissioner  to  execute  an  order issued pursuant to this subdivision without  the  presence  and  assistance  of  a  police  officer  of   an appropriate law enforcement agency.  (j)  Removal  of  the  seal  on  any  premises  sealed pursuant to the provisions of this subdivision shall constitute a misdemeanor.   6. No allegation of unregistered operation as a repair shop  shall  be heard  or determined unless notice of such allegation has been mailed to such person within two years after the date of the alleged  unregistered operation.