Padlock Hearings

RCNY tit. 38, ch. 10

in effect

38 RCNY § 10-01 Notice of Violation.

§ 10-01 Notice of Violation. The owner or managing agent of a building, erection or place shall be given written notice of arrests occurring thereat for offenses which constitute a public nuisance as defined in § 10-155, Administrative Code of the City of New York. The notice shall set forth the section of law violated, the date of violation, the address and location therein at which the violation occurred, and the court, county and docket number pertaining thereto. The notice shall further state that in the event that such arrests and/or future arrests result in two or more convictions for such public nuisance violations within a twelve month period, proceedings to close the building, erection or place may be commenced.

38 RCNY § 10-02 Commencement of Proceedings.

§ 10-02 Commencement of Proceedings. All Public Nuisance hearings shall be commenced by service of a Notice of Hearing on the owner, lessor, lessee and mortgagee (hereinafter called "respondent(s)") of a building, erection or place wherein the public nuisance is being conducted, maintained or permitted. (a) Service. (1) Service of a Notice of Hearing may be made to owners and lessors by delivering such notice to the owner or lessor or to an agent of the owner or lessor or to a person of suitable age and discretion at the residence or place of business of the owner or lessor or, if upon reasonable application such delivery cannot be completed, by affixing such notice in a conspicuous place at the owner's or lessor's place of business or residence or by placing it under the entrance door at either of such locations or by delivering such notice to a person employed by the owner or lessor on the premises at which the nuisance is located and, in all instances except personal delivery upon such owner or lessor by mailing the Notice of Hearing as follows: (i) to the person registered with the Department of Housing Preservation and Development as the owner or agent of the premises, at the address filed with such department in compliance with Article 2 of Subchapter 4 of Chapter 2 of Title 27 of the Administrative Code; or (ii) to the person designated as owner of the building or designated to receive real property tax or water bills for the building at the address for such person contained in one of the files compiled by the Department of Finance for the purpose of the assessment or collection of real property taxes and water charges or in the file compiled by the Department of Finance from real property transfer forms filed with the city register upon the sale or transfer of real property; or (iii) to the person in whose name the real estate affected by the order of the Police Commissioner or such Commissioner's designee is recorded in the office of the City Register or the County Clerk, as the case may be. (2) service of a Notice of Hearing may be made to an owner or lessor which is a corporation pursuant to section three hundred six of the Business Corporation Law. (3) service of a Notice of Hearing may be made to lessees (i) by delivering such notice to the lessee or to a person employed by the lessee on the premises at which the nuisance is located; or (ii) by affixing such notice in a conspicuous place to the premises at which the nuisance is located or placing a copy under the entrance door of such premises and mailing a copy of such notice to the lessee at such premises. (4) service of a Notice of Hearing may be made to mortgagees by mailing such notice to the mortgagee at the last known residence or place of business or employment of the mortgagee. (5) proof of service pursuant to subparagraphs (a), (b), (c) and (d) of this paragraph shall be filed with the Commissioner or the Commissioner's designee. (b) Notice of Hearing. A Notice of Hearing shall contain the name and address of the owner, lessor, lessee and mortgagee, the address of the building, erection or place where the public nuisance is being conducted, and a scheduled time and place for the hearing. The Notice shall cite the subsection of § 10-155 being violated and contain a short and plain statement of the violation. It shall also list the dates of arrest and dates of the prior criminal convictions and cite the specific section of the law upon which they were predicated. The Notice shall also indicate the possible penalties and sanctions for violation and a warning that failure to appear may result in an order closing the building, erection or place. The Notice shall also include a statement that the respondent has a right to be represented by counsel.

38 RCNY § 10-03 Hearing Officials.

§ 10-03 Hearing Officials. (a) Public hearing. Hearings are generally open to the public except that if good cause is shown by either party, the Hearing Officer may exclude the public from a particular hearing or portion of a hearing. (b) Presiding officer. The hearing shall be presided over by an employee of the New York City Police Department who shall be known as the Hearing Officer. The Hearing Officer serves both as impartial examiner and impartial judge and has the duty to conduct fair and impartial hearings, to take all necessary action to avoid delay in the disposition of the proceedings, and to maintain order. Hearing Officers shall be assigned solely to adjudicative and related duties. It is the duty of each Hearing Officer to inquire fully into all matters in issue and to obtain a full and complete record which shall constitute a recommendation to the Commissioner. The Commissioner shall make the final decision. The Hearing Officer has all powers necessary to this end, including: (1) To administer oaths and affirmations; (2) To rule upon offers of proof and to receive evidence; (3) To regulate the course of hearings and the conduct of the parties and their counsel; (4) To hold conferences, both on and off the record, for settlements, simplification of issues, or any other proper purpose. (c) Trial attorney. An individual designated by the Police Commissioner shall present the evidence supporting the existence of a public nuisance.

38 RCNY § 10-04 Proceedings Upon Default.

§ 10-04 Proceedings Upon Default. (a) Inquest. Upon the respondent's failure to appear at the hearing or any adjournment thereof, respondent may be deemed to have pleaded "no contest" and an order closing the building, erection or place may be issued. In such event, a closing order shall not be issued unless the Hearing Officer is satisfied that a Notice of Hearing was duly served and that the evidence offered in support of the closing constitutes a public nuisance as defined in § 10-155 of the Administrative Code of the City of New York. For the purpose of making this determination, the Hearing Officer shall convene the proceeding and receive all evidence in support of the closing as prescribed herein. (b) Application to vacate default. An application for a hearing and stay of a default may be made within twenty (20) days of the posting of a closing order on the affected building, erection or place, or mailing of a copy of the Hearing Officer's decision, whichever is later. Such application is to be made to the License Division and shall be granted upon a showing of good cause.

38 RCNY § 10-05 Conduct of Hearings.

§ 10-05 Conduct of Hearings. (a) General provisions. The Hearing Officer shall rule upon matters of procedure and introduction of evidence and shall conduct the hearing in such manner as will best serve the attainment of justice. (1) Any person who is entitled to notice pursuant to these Regulations may appear and be heard in person or by a duly appointed representative and may produce, under oath, evidence relevant and material to the matter under consideration. (2) Any such person may be represented by an attorney who is a member in good standing of the Bar of the State of New York. (3) Any person desiring to subpoena a witness, document or other evidence may do so in the manner provided for in the New York Civil Practice Law and Rules. In appropriate instances the Hearing Officer can request the issuance of an administrative subpoena pursuant to § 14-137 of the Administrative Code of the City of New York. (4) Record. A record of all proceedings shall be made by either stenographic transcription or electronic recording device. Typewritten copies thereof may be ordered by the parties at their own cost. (5) No ex parte communications relating to other than ministerial matters regarding a proceeding shall be received by a Hearing Officer. (b) Evidence/proof. All parties have the right to call witnesses, to conduct examinations, including cross-examination, to present evidence, and to make objections, motions and arguments. (1) Burden of proof. No public nuisance may be established except upon proof by a preponderance of the credible evidence. The Trial Attorney has the burden of proof in establishing that a public nuisance exists at the cited premises, but the proponent of any factual proposition will be required to sustain the burden of proof with respect thereto. (2) Order of proof. The order of proof shall be as follows: (i) testimony by the witness or witnesses in support of the existence of a public nuisance. (ii) cross-examination of such witnesses; (iii) testimony by the respondent(s) or their witnesses in defense and explanation; and (iv) cross-examination of the respondent(s) and witnesses. The Hearing Officer may, in his discretion, change the order of proof where the circumstances so warrant. (3) Objections to rulings of Hearing Officers. Objections may be taken to the rulings of the Hearing Officer by stating the reasons for such objections, but will not be deemed to have been made unless duly noted in the record. (4) (i) Informality of rules of evidence. The rules of evidence governing proceedings in the courts of this State shall not be rigidly enforced in hearings before the Department. Unless objection is made and duly noted in the record, all evidence appearing in the record shall be deemed to have been validly introduced. (ii) Cumulative evidence. The introduction of cumulative evidence shall be avoided and the Hearing Officer may curtail the testimony of any witness which is judged to be merely cumulative. (iii) Reopening of hearing for presentation of new or additional evidence. Upon due application prior to the final determination, the hearing may be reopened for the presentation of new or additional evidence. The Department may, on its own motion, reopen a hearing for the presentation of additional evidence. (5) Stipulations. Parties may, by agreement, stipulate as to any facts involved in the proceedings, provided that such stipulation is duly noted in the record. (6) Oral arguments only before Hearing Officer. Oral argument may be made only before the Hearing Officer. Such oral argument may be curtailed or limited in the Hearing Officer's discretion and is to be included in the record. (c) Motions and adjournment. (1) Motion to dismiss. Motions to dismiss may be made at the option of the respondent or respondent's attorney, but are not required and will not be deemed to be necessary to protect any right of the respondent. (2) Applications to adjourn. No application for adjournment of a hearing shall be granted except for good cause shown. If such adjournment is sought on the grounds that respondent's attorney is actually engaged in a court of record, an affidavit of actual engagement by such attorney must be presented. (3) Imposition of penalty following application to adjourn. Upon granting any adjournment, the Hearing Officer may direct that the matter be set down peremptory against the respondent, in which event the respondent shall be notified that there shall be no further entitlement to any adjournment.

38 RCNY § 10-06 Decisions and Orders.

§ 10-06 Decisions and Orders. (a) Hearing Officer's recommendation. After the conclusion of the hearing, the Hearing Officer prepares a recommendation in a written report and forwards it, with all other materials necessary for reaching a decision, to the Commissioner. The report includes a statement of (1) a recommended decision which shall consist of findings (with specific references to principal supporting items in the record) and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact and law presented on the record, and (2) an appropriate recommended ruling or order. Upon request made at or before the date of the hearing, the respondent shall be given a reasonable opportunity to review the Hearing Officer's report and submit in writing any objections thereto. Respondent's objections shall be forwarded to the Commissioner with the Hearing Officer's written report. (b) Final order. The Commissioner shall approve, modify or reject (1) the recommended decision and/or (2) the recommended ruling or order. Parties are notified promptly by regular mail of the final decision and order not later than one business day subsequent to the posting described below. Orders of the Commissioner shall be posted at the building, erection or place where the public nuisance exists. The posted order shall state that the building, erection or place has been found to be a public nuisance by the Police Commissioner and that on the fifth business day after the posting, officers of the Police Department are authorized to discontinue such activity and/or close the building, erection or place. The posted order shall include a notice that it shall be a misdemeanor for any person to use or occupy or to permit any other person to use or occupy any building, erection or place or portion thereof ordered closed by the Commissioner. The posted order shall also contain a notice that mutilation or removal of a posted order of the Commissioner shall be punishable by a fine of not more than $250 or by imprisonment not exceeding 15 days, or both.

38 RCNY § 10-07 Consent Judgments.

§ 10-07 Consent Judgments. Any respondent wishing to settle the charges on or before the date set for a hearing may do so by entering into a consent judgment/order which shall have the effect of a decision and order. The judgment/order shall contain such terms and conditions as in the discretion of the Hearing Officer are necessary to attain the purposes of § 10-155 and § 10-156 of the Administrative Code of the City of New York.

38 RCNY § 10-08 Vacation of Order.

§ 10-08 Vacation of Order. Where the Commissioner issues an order closing a building, erection or place, the order may be vacated on such terms and conditions as shall satisfy the Commissioner that the nuisance shall be abated and will not be created, maintained or permitted for such period of time as the building, erection or place has been directed to be closed by the order of the Commissioner. Such terms and conditions may include but are not limited to a posting of a bond or cash security.

38 RCNY § 10-09 Bond.

§ 10-09 Bond. Any bond filed with the Department pursuant to these Regulations shall be delivered to the Hearing Officer for safekeeping until such time as its terms have been fulfilled or violated, as the case may be, or as otherwise directed by the Commissioner. In the event that the terms of the bond have been violated, such bond shall be forfeited and the proceeds thereof shall be paid into the general fund of the City.

38 RCNY § 10-10 Construction.

§ 10-10 Construction. As used herein, terms in the singular shall include the plural.

Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-77815Fetched: 10/24/2026