Contesting Violations

Contesting the Violation

Individual respondents.  Unless the respondent has admitted the charges in the Notice of Violation pursuant to the simplified admission procedure set forth in §7 of the regulations, the respondent must appear before the Bureau at the place, date and time designated in the Notice of Violation (or the date and time to which the matter has been adjourned) either in person or by an attorney admitted to practice in New York State.  

In addition, at the discretion of the administrative law judge, individual respondents who are unable to attend may be represented by a person whom has a valid durable power of attorney, which must be provided to the Bureau with the appropriate affidavit, prior to the conference or hearing date, under such circumstances as the administrative law judge may allow.

Corporations.  Where the respondent is any type of corporation or Limited Liability Company (LLC), the entity may only appear before the Bureau by an attorney.

Appearance and Hearing Procedures

Location: All conferences and hearings shall be held in the Town of Babylon during regular business hours at such place as the Director shall designate from time to time.  

Initial appearance:  All parties should be mindful of the fact that the initial appearance will be for a conference to discuss the matter with an Assistant Town Attorney, and at the request of both parties, with the administrative law judge.  Where the matter is not resolved or adjourned for a further conference, the administrative law judge will schedule a hearing, the date of which shall be chosen in consultation with the issuing agency, the respondent and the Clerk of the Bureau.  
Hearings: At every hearing, each party has the right to present evidence, argument on issues of fact, to examine and cross-examine witnesses, to make factual or legal arguments.  All parties shall be afforded an opportunity to present written argument on issues of law.   An administrative law judge may also allow parties to present oral argument at any hearing.

Witnesses: All persons giving testimony as witnesses at a hearing must be placed under oath or affirmation.  At the discretion of the administrative law judge, witnesses may be excluded from the hearing room, except when they are actually testifying.  Upon good cause shown, if any party or witness is unable to appear for the hearing, the administrative law judge may adjourn the hearing to a later date in his or her discretion.  

Recording of Proceedings: Hearings will be recorded by the Bureau under the supervision of the chief administrative law judge, and the original recording will be part of the record and will constitute the sole official record.  No other recording or photograph of the hearing may be made without prior written permission of the administrative law judge presiding over the hearing.  A copy of the transcript of the hearing will be provided to any party, upon request to the Bureau, upon payment of the cost to the Bureau to produce said transcript.  

Expedited Hearings: Either party may submit an application for an expedited hearing to the chief administrative law judge.  Such application may be granted upon a showing that the moving party would be unduly prejudiced if the hearing were held in the ordinary course of business.

Evidence

Burden of Proof: The Town Attorney, on behalf of the agency that issued the Notice of Violation, has the burden of proving any charge of a violation by a “substantial evidence”.  The respondent has the burden of proving any defense by substantial evidence.

Notice of Violation Admissible: A Notice of Violation affirmed under the penalty of perjury shall be admitted into evidence as the testimony of the agency employee who issued and signed the Notice of Violation, and shall constitute prima facie evidence of the facts contained therein.

Agency Appearance: The agency employee who issued the violation need not appear for the initial conference or any subsequent conferences.  

Types of Evidence: Evidence at a hearing may include, but is not limited to, witness testimony, documents and objects.  Documents may include, but are not limited to business records or government records, photographs, and any other written or graphic record.

1. Admissibility of Evidence: Relevant and reliable evidence may be admitted without regard to technical or formal rules or laws of evidence applicable in courts of the State of New York. Irrelevant, immaterial, unreliable or unduly repetitious evidence, as determined in the sole discretion of the administrative law judge presiding, shall be excluded.  Immaterial or irrelevant parts of an admissible document must be segregated and excluded to the extent practicable.
2. Official Notice: Official notice may be taken of all facts of which judicial notice may be taken. Opportunity to disprove such noticed fact will be granted to any party making a timely objection.

3. Objections: Either party may object to the admissibility of evidence or manner of questioning.  Such objections must be at the time of the admission of said evidence or testimony.   Rulings on all objections must be made and determined on the record.