New York Codes, Rules and Regulations › Title 19 - DEPARTMENT OF STATE › Chapter VIII - Division Of Consumer Protection › Part 220 - General Provisions › Section 220.4 - Enforcement Procedures

Current through Register Vol. 46, No. 28, July 10, 2024
(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.