2023 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.
(5)  No  owner,  operator,  licensed  personnel, or agent thereof of a
licensed  private  career  school  shall  discriminate,  intimidate,  or
retaliate  against  any person who files a written complaint pursuant to
this paragraph.
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. No owner, operator,  licensed
personnel,  or  agent  thereof of a licensed private career school shall
discriminate, intimidate, or retaliate against any student who brings  a
private  right  of  action  against  the owner or operator of a licensed
private career school pursuant to this subdivision.