Part 76 - Public Health Administrative Tribunal

Effective Date: 
Friday, October 13, 1978
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Statutory Authority: 
Public Health Law, Sections 10, 12-a, 206 and State Administrative Procedure Act, arts. 2 and 3

Section 76.1 - Purpose

Section 76.1 Purpose.

To provide for expeditious administrative proceedings to correct and to impose penalties for violations of the State Sanitary Code, Public Health Law and pertinent provisions of the administrative rules and regulations of the department.
 

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Section 76.2 - Definitions

76.2 Definitions.

As used in this Part, the following words and terms have the indicated meanings:

(a) Commissioner means the State Commissioner of Health.

(b) Department means the State Department of Health.

(c) Person means any statutory or legal entity recognized in New York State law.
 

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Section 76.3 - Public health administrative tribunal; establishment, powers and duties

76.3 Public health administrative tribunal; establishment, powers and duties.

(a) A public health administrative tribunal is established in the department consisting of three executive level staff members as designated by the commissioner. The tribunal will itself, or through delegation to tribunal representatives, have the power and duty to:

(1) accept pleas to hear and determine allegations of violations of the Public Health Law and State Sanitary Code (Chapter I of this Title), and pertinent provisions of the administrative rules and regulations of the department;

(2) examine witnesses and receive evidence for this purpose;

(3) administer oaths and affirmations;

(4) sign and issue subpoenas in the name of the department at the request of any party, requiring attendance and giving of testimony by witnesses and production of books, papers, documents and other evidence; such subpoenas shall be regulated by the Civil Practice Law and Rules;

(5) provide for taking of testimony by deposition;

(6) regulate the course of the hearings, set the time and place for continued hearings, and fix the time for filing of briefs and other documents;

(7) determine whether or not to offer a stipulation as provided in section 76.9 of this Part;

(8) impose fines, penalties, permit revocations, permit suspensions or closure as authorized;

(9) order abatement of violations, and a schedule for such abatement; and

(10) order reinspection of the facility to determine compliance with the State Sanitary Code and orders for abatement.

(b) The tribunal will:

(1) serve as the department's review board with respect to appeals made from the decisions, determinations and orders of designated tribunal representatives;

(2) maintain records relating to appeals;

(3) adopt administrative procedures and guidelines; and

(4) maintain a record of designated tribunal representatives and their decisions.
 

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Section 76.4 - Applicability

76.4 Applicability.

This Part applies to proceedings instituted by the service of finding of violation as described in section 76.5 of this Part.
 

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Section 76.5 - Finding of violation

76.5 Finding of violation.

(a) The regulatory proceeding will begin with service of a signed finding of violation issued by a department inspector. Service of the finding of violation will be made to conform to the requirements of section 12-a of the Public Health Law for service of a notice of hearing. An inspection report of the departmental inspector may be used in whole or part as the department's description of alleged violations.

(b) The finding of violation shall contain:

(1) a short and plain statement of facts found which are alleged to constitute a violation, including the dates when such facts were observed;

(2) specific reference to the provisions of the Public Health Law, State Sanitary Code or pertinent provisions of the administrative rules and regulations alleged to have been violated;

(3) Information adequate for a respondent to calculate the maximum penalty assessable if the facts are found to be as alleged;

(4) notification that a hearing will be held at a place designated by the department not less than 15 days after service of the finding of violation, and further notice that failure to appear at the time and place designated for the hearing will constitute a default in appearance by the respondent and that a decision and order will be rendered and issued on the record established by the hearing;

(5) information adequate to apprise the respondent of the provisions relating to answers set forth In section 76.6 of this Part;

(6) a statement that the respondent will be given a reasonable opportunity to be heard by written or oral argument on issues of law and fact;

(7) a description of how the proceedings may be resolved by stipulation agreement between the department and the respondent and payment of a specific monetary fine in lieu of a hearing.

(c) The tribunal or tribunal representatives may allow amendments by the respondent and the department. These amendments must be reasonably within the scope of the original finding of violation or recognize occurrences subsequent to the date of the original finding of violation and be relevant to the alleged violations.
 

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Section 76.6 - Answer to finding of violation

76.6 Answer to finding of violation.

(a) A respondent shall have seven days after receipt of service of the finding of violation within which to answer. The answer shall be made on the form and in accordance with instructions furnished to the respondent with the finding of violation.

(b) If the respondent elects to contest any of the factual allegations in the finding of violation, the respondent may include with the answer a statement of defense, mitigation, denial or explanation for each contested alleged violation. When the respondent elects a hearing on the allegations, the respondent must indicate in the answer whether witnesses will be called.

(c) If the respondent elects not to contest the factual allegations in the finding of violation, the answer shall contain an admission that the allegations are true. Such an answer shall constitute a waiver of a hearing on the existence of the facts alleged in the finding of violation and, unless the respondent indicates that an explanation will be offered, be deemed a waiver of a hearing as to the amount of any penalty.

(d) Failure of the respondent to file an answer within seven days after receipt of service of a finding of violation will constitute a waiver of the right to a hearing and authorizes the tribunal or the tribunal representative, without further notice to the respondent, to find the facts to be as alleged in the finding of violation and to render a decision and order sustaining the allegations and imposing a penalty.

(e) Allegations in a finding of violation not answered will be deemed admitted.
 

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Section 76.7 - Hearings

76.7 Hearings.

(a) Hearings are open to the public, presided over by a tribunal or tribunal representative, and are to proceed with reasonable expedition and order and, insofar as practicable, shall be held at a place and time that will minimize postponements and adjournments.

(b) Each party to a proceeding has the right to be represented by counsel, to present evidence, to examine and cross-examine witnesses (subject to the requirement contained in subdivision (c) of this section), and shall have all rights essential to a fair and impartial hearing.

(c) If requested by the respondent, the department will ensure the appearance of the departmental employee who has signed the finding of violation. Such employee shall testify and produce for examination and consideration any written evidence deemed relevant to the allegations.
 

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Section 76.8 - Tribunal representatives

76.8 Tribunal representatives.

(a) Except as otherwise provided by statute, the tribunal representatives conducting hearings are authorized to:

(1) accept pleas to, and hear and determine, allegations by the department of violations of the provisions of the Public Health Law, the State Sanitary Code (Chapter I of this Title), and pertinent provisions of the administrative rules and regulations of the department;

(2) examine witnesses and receive evidence;

(3) administer oaths and affirmations;

(4) sign and issue subpoenas in the name of the department at the request of any party, requiring attendance and giving of testimony by witnesses and production of books, papers, documents and other evidence; such subpoenas shall be regulated by the Civil Practice Law and Rules;

(5) provide for taking of testimony by deposition;

(6) regulate the course of the hearings, set the time and place for continued hearings, and fix the time for filing of briefs and other documents;

(7) determine whether or not to offer a stipulation as provided in section 76.9 of this Part;

(8) impose fines, penalties, permit revocations, permit suspensions or closure as authorized;

(9) order abatement of violations, and a schedule for such abatement;

(10) order reinspection of the facility to determine compliance with the State Sanitary Code and orders for abatement.
 

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Section 76.9 - Stipulations

76.9 Stipulations.

(a) Hearings into findings of violations may be waived upon stipulation between the respondent and the department.

(b) Stipulations shall comply with terms and conditions prescribed by the department, and may include assessment of a penalty not to exceed the maximum penalty assessable for each violation cited in the finding of violation.

(c) The department inspector, in serving the finding of violation, shall be authorized to represent the department in explaining the options available to the respondent in answering the finding of violations, including the option for stipulation.

(d) The tribunal or tribunal representative shall be authorized to offer a stipulation to the respondent.

(e) Information concerning stipulations made under this section is subject to public release.
 

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Section 76.10 - Disqualification of tribunal representatives

76.10 Disqualification of tribunal representatives.

Hearing shall be conducted in an impartial manner. Upon the filing in good faith by a party of a timely and sufficient affidavit of personal bias or disqualification of a tribunal representative, the tribunal shall determine the matter as a part of the record in the case, and its determination shall be a matter subject to judicial review at the conclusion of the hearing. Whenever a tribunal representative is disqualified or it becomes impractical for the representative to continue a hearing, another representative will be assigned to continue with the case.
 

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Section 76.11 - Decisions, determinations and orders

76.11 Decisions, determinations and orders.

(a) Unless precluded by statute, disposition of any finding of violation may be made by agreed settlement.

(b) Findings of fact shall be based upon the evidence, any matters officially noticed, and any oral or written explanations received.

(c) A written decision sustaining or dismissing the finding of violation shall be rendered by the tribunal representative promptly after the conclusion of a hearing. The decision, a copy of which will be served without delay on the respondent personally or by certified or registered mail, shall contain the findings of fact and, as applicable, orders issued and penalty assessed. The respondent shall also be notified in writing of the right to appeal the decision, as provided In section 76.13 of this Part.
 

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Section 76.12 - Record

76.12 Record.

(a) The record of a hearing will include:

(1) all notices, pleadings, motions, intermediate rulings;

(2) evidence presented;

(3) questions, offers of proof, objections and rulings;

(4) proposed findings and exceptions, if any; and

(5) any decision or report rendered.

(b) Hearings may be mechanically, electronically, or otherwise recorded under the supervision of the tribunal representative, and the original recording or an official transcript thereof shall be part of the record.

(c) Upon request made by any party, the department will prepare the record together with any transcript of proceedings within a reasonable time and shall furnish a copy to the requester. Except when any statute authorizes otherwise, the department is authorized to charge the cost for preparation and furnishing of such record or transcript or any part thereof.
 

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Section 76.13 - Tribunal appeals

76.13 Tribunal appeals.

(a) The tribunal shall serve as a review board within the department and will have jurisdiction to review all decisions and orders of tribunal representatives with regard to whether the facts found therein are supported by substantial evidence in the record and the law. The tribunal, whose decisions shall be by a majority of its members, shall have the power to reverse, remand or modify any decision and order appealed from, and may change the amount of any penalty imposed.

(b) A respondent who elects to seek review of any final decision or order of a tribunal representative shall file a notice of appeal with the department within 15 days of receipt of a copy of the decision and order of the tribunal representative. The notice of appeal is to be accompanied by a brief or memorandum outlining specific reasons why the decision and order should be changed. The filing of a notice of appeal will stay the collection of any fine or imposition of a penalty or order until the tribunal has rendered its decision. However, such notice of appeal shall not stay an order for closure nor public release of information regarding such order for closure. Appeals shall be made upon the record of the hearing and are to be made without physical appearance of the respondent unless requested by the respondent in the notice of appeal. Any appeal in which an appearance is made by the respondent will be open to the public.

(c) The tribunal shall issue its decision in writing within 30 days of receipt of the appeal and furnish a copy to the respondent by certified or registered mail.

(d) Final orders or determinations of the tribunal shall be subject to review as provided in article 78 of the Civil Practice Law and Rules.
 

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Section 76.14 - Computation of time

76.14 Computation of time.

In computing any period of time prescribed or allowed by this Part, the day that the period of time begins will not be included but the last day of the period will be included unless it is a Saturday, Sunday or legal holiday, in which event the next business day will be included. Whenever a party has the right or is required to do some act within a prescribed period of time after the service of a document and the document is served by mail, three days will be added to the prescribed period of time.
 

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