N.Y. Comp. Codes R. & Regs. tit. 5 § 145.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 145.2 - Appeal procedures concerning denials to certify a business enterprise as a minority or women-owned business enterprise or notification of intent to revoke certification

(a) Initiation of an appeal. Upon denial of an application to certify a business enterprise as a minority or women-owned business enterprise, pursuant to Section 144.3 of Part 144 of this Title, or the issuance of a notification of intent to revoke certification as a minority-or women-owned business enterprise pursuant to Section 144.4(b) of Part 144 of this Title, such business enterprise may request an appeal pursuant to the provisions of this subdivision.

(1) Request for an appeal. Upon receipt of a notice of determination to deny an application to certify a business enterprise as a minority or women-owned business enterprise, pursuant to Section 144.3(e) or 144.4(b) of Part 144 of this Title, such business enterprise may submit a request for an appeal to be presided over by an independent hearing officer.

(i) Deadline for request for an appeal. A request for an appeal shall be made within thirty (30) days from the date of receipt of a notice of determination to deny an application or notification of intent to revoke certification. Failure by a business enterprise to request an appeal within thirty (30) days of the date of a notice of determination to deny an application or notification of intent to revoke certification shall constitute a forfeiture by such business enterprise of its right to request an appeal. In the case of an applicant's failure to timely appeal a determination to deny an application, such business enterprise will be barred from reapplying for certification for a period of two (2) years, or in such instance where a business enterprise was denied recertification, such business enterprise will also be removed from the directory.

(ii) Contents of a request for an appeal. A request for an appeal shall be made in writing and shall identify whether the business enterprise elects either to be heard at an in-person hearing before an independent hearing officer or to submit a written appeal submission to an independent hearing officer. Once the request for appeal has been submitted, the business enterprise may not change its election.

(2) Notice of hearing or written appeal. Upon receipt of a timely request for an appeal, the division shall appoint an independent hearing officer and provide the business enterprise requesting the appeal with a notice of hearing or a notice of written appeal.

(i) Appointment of the independent hearing officer. The director shall appoint any impartial person to serve as an independent hearing officer. If, at any time, the director learns that an individual appointed to serve as an independent hearing officer would experience a conflict of interest in serving as an independent hearing officer, or that such individual's service as an independent hearing officer would give rise to an appearance of impropriety, the director shall remove the independent hearing officer and appoint a replacement independent hearing officer.

(ii) Contents of notice of hearing. A notice of hearing shall be in writing, and shall contain the following information:

1. The time and location of the hearing;

2. The identity of the hearing officer who shall preside over the hearing, to the extent known;

3. The legal authority for the hearing;

4. The certification criteria at issue;

5. The identity of the individual who shall represent the division in the hearing, to the extent known;

6. A statement that interpreter services shall be made available to deaf persons; and

7. The procedure to request an adjournment of the hearing.

(iii) Contents of notice of written appeal. A notice of written appeal shall be in writing, and shall contain the following information:

1. The deadline by which the business enterprise must submit its complete written appeal, and any exhibits thereto is sixty (60) days from the date of its receipt of written notice of determination to deny its application for certification or notification of intent to revoke certification;

2. The identity of the hearing officer who shall adjudicate the written appeal, to the extent known;

3. The legal authority for the conduct of the written appeal;

4. The certification criteria at issue;

5. The identity of the individual who shall submit a response to the written appeal of the business enterprise on behalf of the division, to the extent known; and

6. The procedure to request an extension for the submission of a written appeal.

(3) Request for an adjournment of a hearing or extension for submission of a written appeal. A business enterprise may request an adjournment of a hearing, or an extension to submit a written appeal, pursuant to the provisions of this paragraph.

(i) Request for an adjournment of a hearing. A request for an adjournment of a hearing must be made to the independent hearing officer identified in the notice of hearing at least seven (7) business days prior to the scheduled date of the hearing and must state the reason for the request. Upon a showing of good cause, the independent hearing officer may, at his or her discretion, grant a timely request for an adjournment of a hearing.

(ii) Request for an extension for the submission of a written appeal. A request for an extension for the submission of a written appeal must be made to the independent hearing officer identified in the notice of written appeal at least seven (7) business days prior to the date by which the business enterprise must submit its complete written appeal and must state the reason for the request. Upon a showing of good cause, the independent hearing officer may, at his or her discretion, grant a timely request for an extension to submit a written appeal.

(4) Requests to withdraw an appeal. The hearing officer will consider a request for an appeal to be withdrawn under the following circumstances:

(i) The hearing officer has received a written or verbal statement from the petitioner, or the petitioner's attorney; stating that the request for a hearing be withdrawn.

(b) Conduct of the appeal. The independent hearing officer shall, subject to the provisions of this paragraph, conduct the appeal in such order and manner as he or she deems appropriate. In the case of an appeal of a determination to deny certification, the burden of proof shall rest with the applicant.

(1) Conduct of a hearing. All parties shall be given the opportunity to present evidence and oral argument, provided, however, the evidence presented shall be limited to such relevant documentation that, in the case of denial, was before the division at the time of the denial determination, and in the case of intent to revoke, was before the division at the time of notification of intent to revoke; and the independent hearing officer may exclude irrelevant or unduly repetitious evidence from the appeal record.

(i) Recording of the proceedings. The division shall record the proceedings via an electronic recording device.

(ii) Entering testimony into the appeal record. All testimony received into the appeal record shall be under oath or affirmation.

(iii) Rules of technical evidence and procedure. The independent hearing officer shall not be bound by the technical rules of evidence and procedure.

(iv) Representation. All parties may appear at the hearing with legal counsel.

(v) Witnesses. All parties shall have the right to call witnesses and to examine and cross-examine other parties and their witnesses.

(2) Conduct of a written appeal. All parties shall be accorded full opportunity to present evidence and written arguments, provided, however, that the independent hearing officer may exclude irrelevant or unduly repetitious evidence from the appeal record. Relevant evidence shall be limited to the documents and information that was before the division at the time of denial or time of notification of intent to revoke.

(3) Requests for limited discovery. Limited document discovery shall be permitted to a petitioner in any proceeding before a hearing officer. Depositions, interrogatories and other disclosure devices are not permitted.

(i) The documents to be discovered shall be limited to those which, as of the date of the discovery request, the division has in its possession and which were before the division at the time of denial or at the time of intent to revoke.

(ii) A request for limited discovery of documents shall be made in writing to the individual representing the division in the proceeding, as set forth in the notice of hearing or notice of written appeal, with a copy sent to the hearing officer designated to conduct the appeal, at least twenty-one (21) days prior to the date of the hearing or the date by which the written appeal must be submitted.

(iii) The request shall set forth the specific documents being requested.

(iv) Requested documents which are properly discoverable shall be provided to the requesting party, if applicable, within twenty-one (21) days after the receipt of the written request, unless due to the volume of documents being requested, the copying of such documents cannot reasonably be completed within such period.

(v) Where the documents cannot be provided within twenty-one (21) days, written notice of such shall be given to the requesting party, with a copy to be sent to the hearing officer designated to conduct the appeal. Such notice shall state when the requested documents are expected to be provided and the reason(s) for the time to produce.

(4) Closing of the appeal record. The independent hearing officer shall close the appeal record at his or her discretion and may request additional information of the parties based upon the proceedings of a hearing or written appeal. Such additional information shall be limited to information that was before the division at the time of denial or at the time of intent to revoke.

(5) Standard of review. In the case of an appeal pursuant to Section 144.3(e) of Part 144 of this Title, the independent hearing officer shall, based upon the information contained in the appeal record, determine whether the division's determination to deny an application by a business enterprise to be certified as a minority or women-owned business enterprise was supported by substantial evidence. In the case of an appeal pursuant to Section 144.4(b) of Part 144 of this Title, the independent hearing officer shall, based upon the information contained in the appeal record, determine whether the division's intent to revoke the certification of a business enterprise as a minority or women-owned business enterprise is supported by the preponderance of the evidence.

(6) Findings of the independent hearing officer. The independent hearing officer shall render a recommended order and serve a copy of such recommended order to the parties by personal service, electronic mail, or certified mail, return receipt requested, within sixty (60) days of the date upon which the appeal record was closed.

(7) Final Order. The director shall, within thirty (30) days of receipt of a recommended order from an independent hearing officer, render a final order. Such final order may accept, reject, or modify the findings of the independent hearing officer, and must also provide the reasoning for such final determination. The director shall provide a copy of the final order to the business enterprise that is the subject of the final order via personal service, electronic mail, or certified mail, return receipt requested.

(c) In the absence, disability, or disqualification of a hearing officer or for other good cause, a hearing may be transferred to another hearing officer.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 145.2

Amended, New York State Register, Volume XXXVI, Issue 22, effective 6/4/2014

Amended New York State Register December 2, 2020/Volume XLII, Issue 48, eff. 12/2/2020