N.Y. Comp. Codes R. & Regs. tit. 19 § 220.4

Current through Register Vol. 46, No. 53, December 31, 2024
Section 220.4 - Enforcement Procedures
(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.

N.Y. Comp. Codes R. & Regs. Tit. 19 § 220.4

Adopted New York State Register February 7, 2024/Volume XLVI, Issue 6, eff. 2/7/2024