Int 0302-1998

Be it enacted by the Council as follows: Section 1. Section 26-140 of the administrative code of the city of New York is amended to read as follows: Violations and Penalties. Any person who shall violate any of the provisions of this subchapter shall be guilty of a misdemeanor and upon conviction thereof, shall be punishable by a fine not to exceed [five hundred] two thousand dollars, or by imprisonment for a period not to exceed six months or both. Such person shall also be subject to payment of a penalty of not more than two hundred fifty dollars, to be recovered in a civil action brought in the name of the city in any court of record in the city. �2. Subdivision a of section 26-141 of the administrative code of the city of New York is amended to read as follows: a. "Board" means the [license] advisory board established pursuant to section 26-144 of this article. �3. Section 26-141 of the administrative code of the city of New York is amended to add a new subdivision k to read as follows: k. "Hearing" means, for the purposes of this subchapter, an administrative hearing or trial which shall be held at the office of administrative trials and hearings (OATH). �4. Section 26-144 of the administrative code of the city of New York , as amended by local law 55 of 1989, is amended to read as follows: �26-144 Advisory [License] board. a. The commissioner shall appoint annually each member of an [license] advisory board, to [investigate and report, at the request of the commissioner, on all proposed suspensions or revocations of license,] make recommendations at the request of the Commissioner, regarding [the surveillance of] proposed suspensions or revocations of license, the practices of licensed master plumbers and licensed master fire suppression piping contractors, and the policing of the activities of unlicensed and licensed practitioners, and engage in such other functions as herein provided. The commissioner may, for cause shown, remove any member of the [ license] advisory board and shall fill any vacancy therein. Such board shall consist of: 1. Two officers or employees of the department representing the commissioner. 2. Five individuals who are licensed master plumbers at least four of whom shall be selected from nominees of the New York city contracting plumbing association whose members perform the largest dollar value of work within the city and one of whom shall be the holder of a class A or class B master fire suppression piping contractor license. 3. Two individuals who are licensed master fire suppression piping contractors both of whom shall hold a class A license and shall be selected from nominees of the New York city sprinkler/fire suppression piping contractors association whose members perform the largest dollar value of work within the city. 4. A professional engineer having at least five years' experience in the design of plumbing systems. 5. A registered architect. 6. A professional engineer who is a full member of the society of fire protection engineers. 7. A resident of the city. 8. Two officers or employees of the fire department representing the fire commissioner. b. One of the members of the board who is an officer or employee of the department representing the commissioner shall serve as chairperson and all members shall serve without compensation. Eight members including the chairperson, who shall be entitled to vote, shall constitute a quorum of the board for the transaction of business. All actions shall be conducted by majority vote except as otherwise provided. [c. The commissioner may request the license board to investigate and hear any or all written complaints against anyone allegedly acting in violation of the provisions of this subchapter and to report to the commissioner its findings and recommendations. It shall keep minutes of its proceedings and hearings and records of its investigations. Upon the holding of any hearing, the chairperson of the board presiding at such hearing may administer oaths, and the board may issue and cause to be served subpoenas requiring the attendance of witnesses and the production of books and papers pertinent to any hearing held by it upon written complaint. Such subpoenas shall be signed by the chairperson and the fees and mileage paid to witnesses upon the service of such subpoenas shall be those prescribed by law. The board shall meet at least once a month except during the months of July and August, and at such other times upon call of the chairperson. d. The license board may request the commissioner to appoint duly authorized representatives to conduct investigations and other activities incidental to the functions of the license board. Such appointees shall be non-voting members of the committee to which they are appointed, and may include personnel who are not department employees who shall serve without compensation. In addition the commissioner may designate such employees of the department as he or she deems necessary to the service and support for the license board.] [e.]c. The [license] advisory board shall make recommendations to the commissioner regarding plumbing and fire suppression piping practices and code applications. [f.]d. The [license] advisory board shall make recommendations to the commissioner regarding plumbing and fire suppression piping regulations and legislation. �5. Subdivision a of Section 26-146 of the administrative code of the city of New York, as amended by local law 55 of 1989, is amended to read as follows: a. all applicants for a master plumber certificate shall submit satisfactory proof establishing that the applicant: 1. has had at least seven years' prior experience in the design and installation of plumbing systems in the United States; or 2. has received a bachelors's degree in engineering or appropriate engineering technology from a college or university registered by the state department of education and has had at least three years' prior experience in the design and installation of plumbing systems in the United States; or 3. has received credit from an accredited college or university for completing at least two years of plumbing and/or appropriate engineering course work which has been approved by the Commissioner and has had at least five years prior experience in the design and installation of plumbing systems in the United States. �6. Subdivision i of Section 26-148 of the administrative code of the city of New York, as amended by local law 55 of 1989, is amended as follows: i. The licensed master plumber or licensed master fire suppression piping contractor, partnership, corporation or other business association as authorized by the code, shall maintain a place of business within the [city] state of New York at the time of issuance of the plate and during the life thereof which is in conformance with the zoning regulations and the rules and regulations of the commissioner and which complies in other respects with the building code. The licensee shall promptly notify the commissioner of any change of address of his or her place of business within thirty calendar days of such change. �7. Section 26-151 of the administrative code of the city of New York, as amended by local law 55 of 1989, is amended to read as follows: �26-151 Suspension; revocation of license. a. The commissioner shall have the power to suspend or revoke a certificate of competence and/or a licensee's plate and seal and/or to impose a fine not to exceed [five] ten thousand dollars for each finding and/or to order any licensed master plumber or licensed master fire suppression piping contractor to repair damage resulting from any act or omission enumerated in paragraph two of this subdivision [upon recommendation of the board] after a hearing and finding by the office of administrative hearings and tribunals (OATH) of any one or more of the following: (1) fraud or deceit in obtaining a certificate, plate or seal; or (2) gross negligence, incompetence or misconduct relating to the business, trade or calling of the person who is licensed or certified; or (3) fraudulent dealings; or (4) failure to comply with the code or any order, regulation or requirement lawfully made by the commissioner; or (5) failure to comply with any order, regulation or requirement lawfully made by the commissioner of environmental protection or commissioner of transportation pertaining to water services, house connections or street openings which relate to requirements of this subchapter or made by the fire commissioner relating to fire suppression piping matters; or (6) a practice of failing timely to perform or complete contracts relating to home improvements as defined by section 20-386 of the code of a practice of abandoning contracts on residential buildings containing four dwelling units or less ;or (7) poor moral character that adversely reflects on his or her fitness to conduct a plumbing or fire suppression piping contracting business. b. [The chairperson may request three individuals, at least two of whom shall be members of the board, to act as a hearing panel with the approval of the board. The panel shall conduct such hearing and issue a report and recommendation to the board in lieu of the hearing under subdivision a of this section; provided, however, that after such panel has issued a report and recommendation, the board may conduct such further proceedings with respect to the referenced matter as it deems advisable. c.]. Any person claiming to have been injured by the fraud, deceit, negligence, incompetence or other misconduct of any person who is licensed or certified may prefer charges against such licensee before the [board] Commissioner. [d.]c. All charges and/or specifications ,unless dismissed without hearing by the commissioner as unfounded or trivial, shall be submitted by the commissioner in writing to [board or panel] the office of administrative trials and hearings (OATH), which shall have the authority to hold hearings and adjudicate all violations, suspensions and/or revocations referred by the Commissioner. OATH shall also have the authority to adjudicate violations of unlicensed activity which result in the seizure and/or forfeiture of any vehicle as provided by section 26.151.1 herein. [Such charges, and/or specifications, unless dismissed without hearing by the commissioner as unfounded or trivial, shall be heard and determined by the board, with a recommendation to the Commissioner.] [e.]d. [The chairperson shall determine the time and place of such hearing.] A copy of the charges and/or specifications, together with a notice of the time and place of hearing, shall be served upon the accused personally or by certified or registered mail return receipt requested and by ordinary mail at least [ten] five days before the day fixed for the hearing. [f. At such hearing, the accused shall have the right to appear personally, to be represented by counsel, to cross-examine witnesses, and to produce evidence and witnesses in his or her defense. g. If a majority of the members of the board or hearing panel, as applicable, vote in favor of finding the accused guilty, the board or hearing panel may recommend the revocation or suspension of the certificate, plate and seal of the accused or such other action as it shall been appropriate. h.]e. The fees required for the reinstatement of a certificate, plate and seal after suspension or revocation shall be the same as those required to obtain an original certificate, plate and seal. If reinstatement of the certificate, plate and seal, is not requested within thirty days of the lifting of the suspension or revocation, then appropriate late fees shall be imposed. [i.]f. Nothing in this section shall deprive the commissioner of the power to refer an individual upon whom sanctions have been or may be imposed in accordance with this section to any governmental entity, including but not limited to any court of competent jurisdiction, for appropriate action. �8. Section 26-151.1 is added to the administrative code of the city of New York and shall read as follows: �26-151.1 Violations for operating without a license; seizure; forfeiture. a. 1. For purposes of this section, the term "owner" shall mean an owner as defined in section one hundred twenty-eight and in subdivision three of section three hundred eighty-eight of the vehicle and traffic law. 2. For purpose of this section, the term "security interest" shall mean a security interest as defined in subdivision k of section two thousand one hundred one of the vehicle and traffic law. 3. For purpose of this section, the term "unlicensed activity" shall mean the conduct of any activity for which a license is required pursuant to subdivisions a ,b and d of section 26-142 of this subchapter, without such license. b. Any police officer or authorized officer or employee of the department, upon service on the owner or operator of a vehicle of a notice of violation for engaging in unlicensed activity, may seize a vehicle which such police officer or authorized officer or employee has reasonable cause to believe is being used in connection with such violation. Any vehicle seized pursuant to this subdivision shall be delivered into the custody of the department or other appropriate agency. The commissioner shall refer the violations to OATH for a hearing to adjudicate the violation underlying the seizure within five business days after the date of seizure. OATH shall render its determination within three business days after the conclusion of the hearing. Such determination shall also include a finding as to whether or not such vehicle was used in connection with such violation. c. An owner may obtain release of a vehicle seized pursuant to subdivision b of this section prior to the hearing provided for in such subdivision, if such owner has not previously been found to have engaged in unlicensed activity within a five-year period prior to the violation resulting in such seizure. The vehicle shall be released to an eligible owner upon the posting of an all cash bond in a form satisfactory to the commissioner in an amount sufficient to cover the maximum fines or civil penalties which may be imposed for the violation underlying the seizure and all reasonable costs for removal and storage of such vehicle. d. After adjudication of the violation underlying the seizure, if the OATH finds that the vehicle has not been used in connection with unlicensed activity, the department shall promptly release such vehicle upon written demand or its owner. e. After adjudication of the violation underlying the seizure, if OATH finds that the vehicle has been used in connection with unlicensed activity then: (i) if the vehicle is not subject to forfeiture pursuant to paragraph one of subdivision g of this section, the department shall release such vehicle to an owner upon payment of all applicable fines and civil penalties and all reasonable costs of removal and storage; or (ii) if the vehicle is subject to forfeiture pursuant to paragraph one of subdivision g of this section, the department may release such vehicle to an owner upon payment of all applicable fines and civil penalties and all reasonable costs of removal and storage, or may commence a forfeiture action within ten days after the owner's written demand for such vehicle. f. Any vehicle that has not been claimed by the owner within ten days after adjudication by the commissioner of the violation underlying the seizure shall be deemed by the department to be abandoned. Such vehicle shall be disposed of by the department pursuant to section twelve hundred twenty-four of the vehicle and traffic law. g. 1. In addition to any other fine, penalty or sanction provided for in this subchapter, a vehicle seized pursuant to subdivision b of this section, and all rights, title and interest therein shall be subject to forfeiture to the city upon notice and judicial determination thereof if the owner of such vehicle has been found liable at least two times within a five-year period for engaging in unlicensed activity, and each of those determinations have included findings that a vehicle was used in connection with such violations. 2. A forfeiture action pursuant to this subdivision shall be commenced by the filing of a summons with a notice or a summons and complaint in accordance with the civil practice law and rules. Such summons with notice or a summons and complaint shall be served in accordance with the civil practice law and rules on all owners of the subject vehicle listed in the records maintained by the department of motor vehicles, or for vehicles not registered in the state of New York, in the records maintained by the state of registration. A vehicle which is the subject of such action shall remain in the custody of the department or other appropriate agency pending the final determination of the forfeiture action. 3. Notice of the institution of the forfeiture action be given by first-class mail to all persons holding a security interest in such vehicle, if such security interest has been filed with the department of motor vehicles pursuant to the provisions o title ten of the vehicle and traffic law, at the address set forth in the records of such department, or for vehicles not registered in the state of New York, all persons holding a security interest in such vehicles if such security interest has been filed with the state of registration and which persons are made known by such state to the department, at the address provided by such state of registration. 4. Any owner who receives notice of the institution of a forfeiture action who claims an interest in the vehicle subject to forfeiture may assert a claim in such action for the recovery of the vehicle or satisfaction of the owner's interest in such vehicle. Any person with a security interest in such vehicle who receives notice of the institution of the forfeiture action who claims an interest in such vehicle subject to forfeiture may assert a claim in such action for satisfaction of such person's security interest in such vehicle. 5. Forfeiture pursuant to this subdivision shall be made subject to the interest of a person who claims an interest in the vehicle pursuant to paragraph four of this subdivision, where such person establishes that: (i) the use of the vehicle for the conduct that was the basis for the seizure of the vehicle occurred without the knowledge of such person, or if such person had knowledge of such use, that such person did not consent to such use by doing all that could reasonably have been done to prevent such use, ]and that such person did not knowingly obtain such interest in the vehicle in order to avoid the forfeiture of such vehicle, or (ii) that the conduct that was the basis for such seizure was committed by any person other than such person claiming an interest in the vehicle, while such vehicle was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States or any state. 6. The department or agency having custody of the vehicle, after judicial determination of forfeiture, shall, at is discretion, either (i) retain such vehicle for the official use of the city; or (ii) by public notice of at least five days, sell such forfeited vehicle at public sale. The net proceeds of any such sale shall be paid into the general fund of the city. 7. In any forfeiture action commenced pursuant to this subdivision, where the court awards a sum of money to one or more persons in satisfaction of such person's interest in the forfeited vehicle, the total amount awarded to satisfy such interest or interests shall not exceed the amount of the net proceeds of the sale of the forfeited vehicle after deduction of the lawful expenses incurred by the city, including reasonable costs of removal and storage of the vehicle between the time of seizure and the date of sale. �9. Section 26-152 of the administrative code of the city of New York is amended to read as follows: � 26-152. Practice without license and other violations; penalties; actions for penalties. a. Any person not authorized to perform the work and services of a licensed master plumber or licensed master fire suppression piping contractor in accordance with the provision of this subchapter or any person filing or attempting to file a licensed master plumber or licensed master fire suppression piping contractor's statement or other document on behalf of another, or representing himself or herself as another, or giving false or forged evidence of any kind to the commissioner or any other city official, or otherwise violating any of the provisions of this subchapter, shall be subject to a penalty of not less than [five hundred] one thousand dollars nor more than [five] ten thousand dollars for the first offense, and not less than [one] two thousand dollars nor more than [five] ten thousand dollars for each and every subsequent offense, upon findings after administrative hearings by [the board] OATH. �10. This local law shall take effect immediately. 1