Bill Text: NY A01940 | 2011-2012 | General Assembly | Introduced


Bill Title: Authorizes the town of Brookhaven to establish a housing and community court to assist the district court in the disposition of all violations of town laws, codes and ordinances, and provides for its powers and duties.

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2012-01-04 - referred to local governments [A01940 Detail]

Download: New_York-2011-A01940-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
           S. 1801                                                  A. 1940
                              2011-2012 Regular Sessions
                             S E N A T E - A S S E M B L Y
                                   January 12, 2011
                                      ___________
       IN SENATE -- Introduced by Sen. LAVALLE -- read twice and ordered print-
         ed, and when printed to be committed to the Committee on Local Govern-
         ment
       IN  ASSEMBLY  -- Introduced by M. of A. THIELE -- read once and referred
         to the Committee on Local Governments
       AN ACT to amend the town law, in relation to  authorizing  the  town  of
         Brookhaven to establish a housing and community court
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The town law is amended by adding a  new  article  10-A  to
    2  read as follows:
    3                                 ARTICLE 10-A
    4                           BROOKHAVEN HOUSING AND
    5                               COMMUNITY COURT
    6  SECTION 160. ESTABLISHMENT.
    7          161. ADMINISTRATIVE LAW JUDGES.
    8          162. JURISDICTION TO IMPOSE CIVIL PENALTIES.
    9          163. SUMMONS.
   10          164. COMMENCEMENT OF PROCEEDINGS; DEFAULT JUDGMENTS.
   11          165. JUDICIAL ENFORCEMENT.
   12          166. RESTRICTION ON COLLATERAL USE.
   13          167. APPEALS.
   14    S  160. ESTABLISHMENT. THE TOWN BOARD OF THE TOWN OF BROOKHAVEN MAY BY
   15  ORDINANCE OR LOCAL LAW ESTABLISH A HOUSING AND COMMUNITY COURT TO ASSIST
   16  THE DISTRICT COURT IN THE DISPOSITION  OF  ALL  VIOLATIONS  OF  TOWN  OF
   17  BROOKHAVEN HOUSING LAWS, CODES AND ORDINANCES.
   18    S  161.  ADMINISTRATIVE  LAW  JUDGES. 1. THE TOWN BOARD OF THE TOWN OF
   19  BROOKHAVEN SHALL APPOINT ADMINISTRATIVE LAW JUDGES WHO SHALL  BE  ATTOR-
   20  NEYS  ADMITTED  TO  PRACTICE IN THIS STATE FOR NOT LESS THAN THREE YEARS
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03836-01-1
       S. 1801                             2                            A. 1940
    1  AND SHALL HAVE SUCH OTHER QUALIFICATIONS AS MAY BE  PRESCRIBED  BY  SUCH
    2  TOWN BOARD.
    3    2.  NO ADMINISTRATIVE LAW JUDGE SHALL PARTICIPATE IN ANY PROCEEDING TO
    4  WHICH HE OR SHE IS A PARTY, IN WHICH HE OR SHE  HAS  BEEN  AN  ATTORNEY,
    5  COUNSEL  OR  REPRESENTATIVE, IF HE OR SHE IS RELATED BY CONSANGUINITY OR
    6  AFFINITY TO ANY PARTY TO THE PROCEEDING WITHIN THE SIXTH DEGREE OR WHERE
    7  SUCH PARTICIPATION IS OTHERWISE PROHIBITED BY  LAW.  ADMINISTRATIVE  LAW
    8  JUDGES SHALL ENSURE THAT ALL HEARINGS ARE CONDUCTED IN A FAIR AND IMPAR-
    9  TIAL MANNER.
   10    3.  EXCEPT  AS OTHERWISE PROVIDED BY LAW, IN THE CONDUCT OF AN ADJUDI-
   11  CATION, AN ADMINISTRATIVE LAW JUDGE MAY:
   12    A. HOLD CONFERENCES FOR THE SETTLEMENT OR SIMPLIFICATION OF ISSUES;
   13    B. ADMINISTER OATHS AND AFFIRMATIONS,  EXAMINE  WITNESSES,  RULE  UPON
   14  OFFERS  OF  PROOF,  RECEIVE  EVIDENCE,  AND OVERSEE, REGULATE, ORDER AND
   15  ENFORCE SUCH DISCOVERY AS IS APPROPRIATE UNDER THE CIRCUMSTANCES;
   16    C. UPON MOTION OF ANY PARTY, OR UPON THE  ADMINISTRATIVE  LAW  JUDGE'S
   17  OWN  MOTION  UPON  CONSENT  OF THE DEFENDANT, SUBPOENA THE ATTENDANCE OF
   18  WITNESSES AND THE PRODUCTION OF BOOKS, RECORDS OR OTHER INFORMATION;
   19    D. REGULATE THE COURSE OF THE HEARING;
   20    E. RULE ON PROCEDURAL REQUESTS OR SIMILAR MATTERS;
   21    F. MAKE FINAL FINDINGS OF FACT AND FINAL DECISIONS, DETERMINATIONS  OR
   22  ORDERS;
   23    G.  WHERE  THE BROOKHAVEN HOUSING AND COMMUNITY COURT IS AUTHORIZED TO
   24  RENDER A FINAL DECISION, DETERMINATION OR ORDER  IMPOSING  CIVIL  PENAL-
   25  TIES, IMPOSE SUCH CIVIL PENALTIES; AND
   26    H. TAKE ANY OTHER ACTION AUTHORIZED BY LAW.
   27    4.  UNLESS INCONSISTENT WITH THIS ARTICLE, ALL HEARINGS SHALL SUBSTAN-
   28  TIALLY COMPLY WITH THE REQUIREMENTS OF ARTICLE THREE OF THE STATE ADMIN-
   29  ISTRATIVE PROCEDURE ACT.
   30    5. UNLESS OTHERWISE AUTHORIZED BY LAW AND EXCEPT AS OTHERWISE PROVIDED
   31  IN SUBDIVISION SIX OF THIS SECTION, NO ADMINISTRATIVE  LAW  JUDGE  SHALL
   32  COMMUNICATE  IN CONNECTION WITH ANY ISSUE THAT RELATES IN ANY WAY TO THE
   33  MERITS OF A PROCEEDING PENDING BEFORE SUCH JUDGE WITH ANY PERSON  EXCEPT
   34  UPON NOTICE AND OPPORTUNITY FOR ALL PARTIES TO PARTICIPATE.
   35    6.  AN  ADMINISTRATIVE  LAW JUDGE MAY CONSULT, ON QUESTIONS OF LAW AND
   36  MINISTERIAL MATTERS,  WITH  OTHER  ADMINISTRATIVE  LAW  JUDGES  AND  THE
   37  SUPPORT STAFF OF SUCH COURT, PROVIDED THAT SUCH ADMINISTRATIVE LAW JUDG-
   38  ES OR SUPPORT STAFF HAVE NOT ENGAGED IN FUNCTIONS IN CONNECTION WITH THE
   39  ADJUDICATORY  PROCEEDING  UNDER  CONSIDERATION  OR  A  FACTUALLY RELATED
   40  PROCEEDING.
   41    S 162. JURISDICTION TO IMPOSE CIVIL  PENALTIES.    1.  THE  BROOKHAVEN
   42  HOUSING  AND  COMMUNITY  COURT  MAY  IMPOSE  ANY  CIVIL  PENALTY FOR THE
   43  VIOLATION OF A TOWN LAW, CODE OR ORDINANCE THAT THE  DISTRICT  COURT  IS
   44  AUTHORIZED  TO  IMPOSE.    NOTWITHSTANDING  ANY  PROVISION OF LAW TO THE
   45  CONTRARY, ANY CIVIL PENALTY IMPOSED BY SUCH COURT UPON A PERSON WHO  HAS
   46  AN  INTEREST IN REAL PROPERTY IN THE TOWN OF BROOKHAVEN, SHALL BE A LIEN
   47  UPON SUCH REAL PROPERTY IF SUCH  PENALTY  IS  NINETY  DAYS  OR  MORE  IN
   48  ARREARS. ALL SUCH ARREARS SHALL BE DEEMED TO BE A REAL PROPERTY TAX UPON
   49  THE  REAL  PROPERTY  AND  MAY  BE COLLECTED AS SUCH PURSUANT TO THE REAL
   50  PROPERTY TAX LAW.
   51    2. NO PERSON APPEARING BEFORE THE  BROOKHAVEN  HOUSING  AND  COMMUNITY
   52  COURT  SHALL  BE  SENTENCED  TO  A TERM OF IMPRISONMENT UPON BEING FOUND
   53  GUILTY OF ANY CHARGE, NOR SHALL AN ADMINISTRATIVE LAW  JUDGE  ORDER  THE
   54  ARREST OR DETENTION OF ANY PERSON, NOR SHALL AN ADMINISTRATIVE LAW JUDGE
   55  DEPRIVE ANY PERSON OF THE RIGHT TO COUNSEL.
       S. 1801                             3                            A. 1940
    1    S  163. SUMMONS. THE BROOKHAVEN HOUSING AND COMMUNITY COURT SHALL HAVE
    2  THE SAME POWERS AND DUTIES RELATING TO A  SUMMONS  AS  ARE  PROVIDED  TO
    3  DISTRICT  COURTS  PURSUANT TO ARTICLE FOUR OF THE UNIFORM DISTRICT COURT
    4  ACT, ARTICLE THREE OF THE CIVIL PRACTICE LAW AND RULES, ARTICLE THREE OF
    5  THE  BUSINESS CORPORATION LAW AND ARTICLE THREE OF THE LIMITED LIABILITY
    6  COMPANY LAW. IN ADDITION,
    7    1. SERVICE OF A SUMMONS MAY BE MADE BY DELIVERING SUCH  SUMMONS  TO  A
    8  PERSON EMPLOYED BY THE RESPONDENT:
    9    A.  TO  WORK ON THE PREMISES THE OCCUPANCY OF WHICH CAUSED THE ALLEGED
   10  VIOLATION OF A TOWN OF BROOKHAVEN LAW, CODE OR ORDINANCE,
   11    B. AT THE PREMISES AT WHICH THE RESPONDENT ACTUALLY CONDUCTS THE BUSI-
   12  NESS THE OPERATION OF WHICH GAVE RISE TO SUCH ALLEGED VIOLATION, OR
   13    C. AT THE SITE  OF  THE  WORK  AT  WHICH  SUCH  AN  ALLEGED  VIOLATION
   14  OCCURRED; AND
   15    2.  SERVICE OF A SUMMONS MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT
   16  REQUESTED, TO THE RESPONDENT. IF AFTER TWENTY-ONE DAYS SUCH MAILING  HAS
   17  NOT  BEEN RETURNED AS UNDELIVERABLE, THE RESPONDENT SHALL BE PRESUMED TO
   18  HAVE BEEN SERVED SUCH SUMMONS.
   19    S 164. COMMENCEMENT OF PROCEEDINGS; DEFAULT JUDGMENTS. 1. THE BROOKHA-
   20  VEN HOUSING AND COMMUNITY COURT SHALL CONDUCT THE PROCEEDINGS AUTHORIZED
   21  BY LOCAL LAW IN ACCORDANCE WITH THIS SECTION.
   22    2. SUCH PROCEEDINGS SHALL BE COMMENCED BY THE SERVICE  OF  A  SUMMONS.
   23  THE  SUMMONS  OR COPY THEREOF WHEN FILLED IN AND SERVED SHALL CONSTITUTE
   24  NOTICE OF THE VIOLATION CHARGED, AND, IF SWORN TO OR AFFIRMED, SHALL  BE
   25  PRIMA  FACIE  EVIDENCE  OF THE FACTS CONTAINED THEREIN. THE SUMMONS WHEN
   26  SWORN TO OR AFFIRMED SHALL CONSTITUTE THE TESTIMONY OF THE SIGNATOR AND,
   27  WHEN FILED WITH THE BROOKHAVEN HOUSING  AND  COMMUNITY  COURT  SHALL  BE
   28  ADMITTED INTO EVIDENCE AS SUCH TESTIMONY AT ANY HEARING ON THE VIOLATION
   29  CHARGED.  EVERY  SUCH  SUMMONS  SHALL  STATE WHETHER THE FACTS SET FORTH
   30  THEREIN ARE KNOWN PERSONALLY TO THE SIGNATOR AND IF THE FACTS ARE NOT SO
   31  KNOWN THE SUMMONS SHALL SPECIFICALLY IDENTIFY THE SOURCE OF KNOWLEDGE OF
   32  SUCH FACTS.  IF THE RESPONDENT DISPUTES THE FACTS STATED IN THE SUMMONS,
   33  THE  ADMINISTRATIVE  LAW  JUDGE,  WHERE  APPROPRIATE  MAY   REJECT   THE
   34  SIGNATOR'S  FACTS,  ACCEPT  FACTS  THE  RESPONDENT OFFERS, OR DIRECT THE
   35  SIGNATOR'S APPEARANCE.
   36    3. A. THE  SUMMONS  SHALL  CONTAIN  INFORMATION  ADVISING  THE  PERSON
   37  CHARGED OF THE MANNER AND THE TIME IN WHICH SUCH PERSON MAY EITHER ADMIT
   38  OR  DENY  THE  VIOLATION CHARGED IN THE SUMMONS. SUCH SUMMONS SHALL ALSO
   39  CONTAIN A WARNING TO ADVISE THE PERSON CHARGED THAT FAILURE TO PLEAD  IN
   40  THE  MANNER AND TIME STATED IN THE SUMMONS MAY RESULT IN A DEFAULT DECI-
   41  SION AND ORDER BEING ENTERED AGAINST SUCH PERSON. THE ORIGINAL OR A COPY
   42  OF THE SUMMONS SHALL BE FILED AND RETAINED BY THE BROOKHAVEN HOUSING AND
   43  COMMUNITY COURT AND SHALL BE DEEMED A RECORD KEPT IN THE ORDINARY COURSE
   44  OF BUSINESS.
   45    B. EVERY SUMMONS SHALL IDENTIFY THE PROVISION OF LAW CHARGED AND SHALL
   46  SET FORTH THE FACTUAL BASIS FOR THE VIOLATION.  WHERE A SUMMONS DOES NOT
   47  CONTAIN THIS INFORMATION, IT SHALL BE DISMISSED AT THE  REQUEST  OF  THE
   48  RESPONDENT  OR THE ADMINISTRATIVE LAW JUDGE MAY DISMISS THE SUMMONS UPON
   49  HIS OR HER OWN MOTION.
   50    4. WHERE A RESPONDENT HAS FAILED TO PLEAD WITHIN THE TIME  ALLOWED  BY
   51  CONTROLLING LAW OR, IF THERE IS NO SUCH CONTROLLING LAW, BY THE RULES OF
   52  THE BROOKHAVEN HOUSING AND COMMUNITY COURT, OR HAS FAILED TO APPEAR ON A
   53  DESIGNATED  HEARING  DATE OR A SUBSEQUENT DATE FOLLOWING AN ADJOURNMENT,
   54  SUCH FAILURE TO PLEAD OR APPEAR SHALL BE DEEMED, FOR ALL PURPOSES, TO BE
   55  AN ADMISSION OF LIABILITY AND SHALL BE GROUNDS FOR RENDERING  A  DEFAULT
   56  DECISION  AND  ORDER  IMPOSING  A  PENALTY  UP  TO  THE  MAXIMUM  AMOUNT
       S. 1801                             4                            A. 1940
    1  PRESCRIBED UNDER LAW FOR THE VIOLATION CHARGED.  A DEFAULT DECISION  AND
    2  ORDER  MAY  BE OPENED WITHIN ONE YEAR OF ITS ENTRY UPON WRITTEN APPLICA-
    3  TION SHOWING EXCUSABLE DEFAULT AND A MERITORIOUS DEFENSE TO THE  CHARGE;
    4  A  DEFAULT DECISION AND ORDER MAY THEREAFTER BE OPENED ONLY UPON WRITTEN
    5  APPLICATION SHOWING EXCUSABLE DEFAULT,  A  MERITORIOUS  DEFENSE  TO  THE
    6  CHARGE, AND GOOD CAUSE FOR THE DELAY.
    7    5.  ANY  FINAL  ORDER  OF  THE  BROOKHAVEN HOUSING AND COMMUNITY COURT
    8  IMPOSING A CIVIL PENALTY, WHETHER THE ADJUDICATION WAS HAD BY HEARING OR
    9  UPON DEFAULT OR OTHERWISE, SHALL CONSTITUTE A JUDGMENT RENDERED BY  SUCH
   10  COURT  AGAINST THE RESPONDENT WHICH MAY BE ENTERED IN THE DISTRICT COURT
   11  OR ANY OTHER PLACE PROVIDED FOR THE ENTRY OF CIVIL JUDGMENTS WITHIN  THE
   12  STATE,  AND  MAY  BE ENFORCED AGAINST THE RESPONDENT AND HIS, HER OR ITS
   13  PROPERTY WITHOUT COURT PROCEEDINGS IN THE SAME MANNER AS THE ENFORCEMENT
   14  OF MONEY JUDGMENTS ENTERED  IN  CIVIL  ACTIONS,  PROVIDED  FURTHER,  ANY
   15  ARREARS  MAY BE COLLECTED AS REAL PROPERTY TAXES PURSUANT TO SUBDIVISION
   16  ONE OF SECTION ONE HUNDRED SIXTY-TWO OF THIS ARTICLE;  PROVIDED  HOWEVER
   17  THAT NO SUCH JUDGMENT SHALL BE ENTERED WHICH EXCEEDS THE JURISDICTION OF
   18  SUCH DISTRICT COURT OR OTHER COURT.
   19    6.  NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION, BEFORE A
   20  JUDGMENT BASED UPON A DEFAULT MAY BE SO ENTERED THE  BROOKHAVEN  HOUSING
   21  AND  COMMUNITY  COURT  SHALL HAVE NOTIFIED THE RESPONDENT BY FIRST CLASS
   22  MAIL IN SUCH FORM:
   23    A. OF THE DEFAULT DECISION AND ORDER AND THE PENALTY IMPOSED;
   24    B. THAT A JUDGMENT MAY BE ENTERED IN THE DISTRICT COURT OR  ANY  OTHER
   25  PLACE  PROVIDED FOR THE ENTRY OF CIVIL JUDGMENTS WITHIN THE STATE OF NEW
   26  YORK; AND
   27    C. THAT ENTRY OF SUCH JUDGMENT MAY BE AVOIDED BY REQUESTING A STAY  OF
   28  DEFAULT FOR GOOD CAUSE SHOWN AND EITHER REQUESTING A HEARING OR ENTERING
   29  A PLEA WITHIN THIRTY DAYS OF THE MAILING OF SUCH NOTICE.
   30    S  165.  JUDICIAL ENFORCEMENT. ANY ORDER, SUBPOENA, OR ANY FINAL DECI-
   31  SION OR DETERMINATION RENDERED BY THE BROOKHAVEN HOUSING  AND  COMMUNITY
   32  COURT  SHALL  BE SUBJECT TO ENFORCEMENT BY THE JUDICIARY IN AN ACTION OR
   33  PROCEEDING COMMENCED  IN  A  COURT  OF  COMPETENT  JURISDICTION  BY  THE
   34  PREVAILING PARTY, INCLUDING THE TOWN OF BROOKHAVEN.
   35    S  166.  RESTRICTION  ON COLLATERAL USE. DECISIONS, DETERMINATIONS AND
   36  ORDERS ISSUED BY THE BROOKHAVEN HOUSING AND COMMUNITY COURT SHALL NOT BE
   37  CITED, AND SHALL NOT BE CONSIDERED PRECEDENT NOR BE GIVEN ANY  FORCE  OR
   38  EFFECT IN ANY CRIMINAL PROCEEDING.
   39    S  167. APPEALS. EVERY APPEAL OF A FINAL DETERMINATION OF THE BROOKHA-
   40  VEN HOUSING AND COMMUNITY COURT SHALL BE HEARD IN THE APPELLATE TERM  OF
   41  SUPREME  COURT IN THE SECOND DEPARTMENT.  SUCH APPEALS SHALL BE TAKEN BY
   42  FILING A NOTICE OF APPEAL WITH SUCH COURT  WITHIN  THIRTY  DAYS  OF  THE
   43  ENTRY  OF THE DECISION, DETERMINATION, OR ORDER FROM WHICH THE APPEAL IS
   44  BEING TAKEN.
   45    S 2. This act shall take effect on the thirtieth day  after  it  shall
   46  have become a law.
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