§ 5-12 — Enforcement

§ 5-12 Enforcement.

(a) Corrective Action Request (CAR). (1) If the Commissioner finds that any licensee has, for the first time, violated (i) any provision of §§ 19-160 through 19-160.6 of the Administrative Code; (ii) any of these rules; or (iii) any of the terms and conditions of the license, the Commissioner shall notify such licensee of such violation and request that action be taken to correct such violation within 30 days and shall afford such licensee an opportunity to protest the Commissioner’s finding in a manner set forth in these rules. (2) A CAR may be served by mail or by e-mail on the licensee responsible for the condition which requires correction at the address or e-mail address for such person contained in the records of the Department. (3) Any corrective action required by the CAR must be performed within thirty (30) days of the issuance of the CAR unless such issuance is protested as provided herein. If the corrective action required by the CAR is not performed within thirty (30) days of the issuance of the CAR and such issuance is not protested, the Department may issue a summons for an uncorrected condition upon reinspection. (4) Protest. (i) Within fourteen (14) days after the date of service of the CAR, the respondent may protest the issuance of the CAR by submitting such protest in writing to the Department at the location or address as specified on its website and on the CAR. If the respondent fails to timely protest the CAR and the Department issues a summons for an uncorrected condition, the respondent may be issued a summons for failing to respond to the CAR in a timely manner. (ii) Protests will be reviewed by the Department and a final determination regarding the protest will be made within a reasonable period of time. (iii) If a protest is denied, any corrective action required by the CAR must be performed within thirty (30) days after the date of such denial. If the corrective action required by the CAR is not performed within thirty (30) days of such denial, the Department may issue a summons for an uncorrected condition upon reinspection. (b) Administrative summons. Administrative summons issued by the Department shall be returnable to the Environmental Control Board. The Office of Administrative Trials and Hearings, acting pursuant to section 1049-a of the New York City Charter, has the power to impose the civil penalties prescribed by § 19-150 of the Administrative Code in accordance with the rules of such agency. (c) Suspension and Revocation. (1) In addition to any other authorized enforcement procedures, the Commissioner may, after providing notice of intent to suspend or revoke a license and an opportunity to be heard in accordance with paragraph (2), suspend or revoke a license to operate a sidewalk cafe or roadway cafe and order the removal of such sidewalk cafe or roadway cafe for 3 or more violations of the same provision of Subchapter 1 of Chapter 1 of Title 19 of the Administrative Code or these rules within a 2-year period, or for any 6 or more violations of any provision of such subchapter or these rules within a 2-year period. The Department will provide notice to the licensee of the Department’s intent to suspend or revoke the license of such licensee no later than 30 days prior to such suspension or revocation. (2) Opportunity to Be Heard. (i) A licensee noticed by the Department with regard to the suspension or revocation of such licensee’s license may request in writing an opportunity to be heard. Such request must be received no later than thirty (30) days following the date of the Department’s notice to the licensee that the license may be suspended or revoked. Where the Department does not receive a written request for an opportunity to be heard within such time, the Department may revoke or suspend the license. (ii) Process. (A) Where the licensee submits a timely request for an opportunity to be heard, the Department will schedule a date and time, no later than 30 days from the date on which the Department received such request, for such opportunity to be heard, in person at the Department’s offices, regarding the suspension or revocation. (B) The licensee may request, in writing, copies of any evidence relied upon by the Department in determining that the license should be suspended or revoked. Such request must be received by the Department no later than 14 days prior to the date of the opportunity to be heard. The Department will provide a copy of such evidence by mail or electronic mail, as specified by the licensee in its request, no later than 7 days prior to the date of the opportunity to be heard. (C) Requests for rescheduling by the licensee of the opportunity to be heard must be received by the Department no later than 48 hours prior to the originally scheduled date. If the Department approves the request for rescheduling, a new date will be scheduled within 14 days of the original date. (D) The licensee may provide affidavits in support of its position, submitted prior to or at the opportunity to be heard, and may bring witnesses in support of their position to the opportunity to be heard. The Department may also supply affidavits or witnesses. Any affidavits or witnesses will not be subject to cross-examination. (E) The hearing will be conducted by an employee of the Department designated by the Commissioner and the opportunity to be heard will be transcribed or recorded by the Department. (F) The Commissioner’s designee will (1) review the Department's decision to issue the notice of intent to revoke or suspend the license, and (2) provide an opportunity for the licensee to present reasons and evidence in support of the challenge to the suspension or revocation. The Commissioner’s designee will issue findings of fact and a recommendation following the opportunity to be heard. (G) Within 30 days of the hearing, the Commissioner or the Commissioner’s designee, who will be an employee of DOT other than the employee who conducted the hearing and issued the recommendation pursuant to clause (F) of this subparagraph, will issue a final decision regarding the suspension or revocation. Such final decision will set forth the findings of fact and recommendation of the employee who conducted the hearing and will accept, reject or modify such recommendation. The Department will send such final decision to the licensee via mail or electronic mail within 5 days of issuance of such final decision. Such final decision will constitute a final agency determination that is subject to review by a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules. (3) Notwithstanding any inconsistent provision of this section, the suspension or revocation of a license shall be waived if, upon the submission of satisfactory proof, the Department determines that the person or persons who committed the violations which are the basis for the suspension or revocation acted against the licensee’s instructions in committing such violations. (d) Removal. (1) Operating without a License. The Commissioner may order the removal of any furniture, equipment, structure or other obstruction used in connection with the operation of an outdoor dining area on the sidewalk or in the roadway by a person that is not licensed to operate a sidewalk cafe or roadway cafe pursuant to § 19-160 of the Administrative Code and has no other lawful right to operate an outdoor dining area on such sidewalk or in such roadway. (2) Noncompliance. The Commissioner may order the removal of any furniture, equipment, structure or other obstruction placed on the sidewalk or roadway by a licensee where such furniture, equipment, structure or other obstruction is inconsistent with any of the requirements set forth in these rules. (3) Commissioner’s Order. (i) An order pursuant to this subdivision will be served personally or by mail to the person and address contained in the records of the Department. The person to whom such order is directed has an opportunity to be heard within five (5) business days after a timely request for such opportunity is received by the Department. A request must be made within the time and in the manner directed on the order. If, after considering the written objections of the respondent, the Commissioner affirms the order, the action required by the order shall be completed within a reasonable period of time, as set forth in such order, after notice of such determination is mailed to the respondent. (ii) Where such order has not been complied with within a reasonable period of time as set forth in such order, officers or employees of the Department or the Police Department may remove such furniture, equipment, structure or other obstruction from the sidewalk or the roadway and convey them to a place of safety. (iii) Where the Department has an address for the person to whom such order was directed, within five (5) days of removal, the Department will mail to such person notice of such removal and the manner in which such furniture, equipment, structure or other obstruction may be claimed. In any notification served personally or mailed pursuant to this section, the Department will include a statement of the right to sell, dismantle, destroy or otherwise dispose of such furniture, equipment, structure, or other obstruction within thirty (30) days after removal if such property is not claimed. (iv) Any furniture, equipment, structure, or other obstructions removed pursuant to this section will not be released until the removal charge and storage fee of two thousand five hundred dollars ($2,500) has been paid or a bond or other security for such amount has been posted. (v) Any furniture, equipment, structure, or other obstructions that is not claimed will be sold at public auction after having been advertised in the City Record for a period of ten (10) days. In the alternative, any such property may be used or converted to use for the purpose of any city, state, or federal agency, or for charitable purposes, upon consultation with the appropriate city agencies. (vi) The procedures outlined in the preceding subdivisions of this section do not apply to furniture, equipment, structures, or other obstructions determined by the Department to be without worth or value. The Department may immediately dispose of such property at disposal points or places designated by the New York City Department of Sanitation. (4) Nothing in this section is intended to alter or affect the power of the Commissioner to order the immediate removal of or remove any obstruction from the sidewalk or roadway or the immediate correction of any violation that the Commissioner determines is a danger to public welfare, safety, or energy system reliability, including planned or emergency work, parades, marathons, or other special events. (e) Liability of Subsequent Licensees. (1) Any violation for operating an unlicensed sidewalk cafe or unlicensed roadway cafe will be included in the number of violations by any subsequent licensee at the same place of business unless such subsequent licensee provides the Department with adequate documentation in accordance with subdivisions (a) and (d) of § 19-160.5 of the Administrative Code, demonstrating that such licensee acquired the premises or business through an arm’s length transaction and that the sale or lease of such sidewalk cafe or roadway cafe was not conducted, in whole or in part, to avoid the effect of violations on such premises or business. (2) A subsequent licensee is liable for violations by a prior licensee unless such subsequent licensee provides the Department with adequate documentation in accordance with subdivision (d) of § 19-160.5 of the Administrative Code. (Added City Record 2/2/2024, eff. 3/3/2024)