N.Y. VAT. LAW § 398-i : NY Code - Section 398-I: Unregistered operation; procedures and penalties

Search N.Y. VAT. LAW § 398-i : NY Code - Section 398-I: Unregistered operation; procedures and penalties

1. The
  commissioner or any person deputized by him shall hear and determine any
  allegation that a person  has  operated  a  repair  shop  without  being
  registered  as  required  by  subdivision  one  of section three hundred
  ninety-eight-c of this chapter. Upon a determination that a  person  has
  so  operated,  the  commissioner or person deputized by him shall assess
  civil penalties as provided  in  subdivisions  two  and  three  of  this
  section.
    2.  Except as provided in subdivision three, any person who operates a
  repair shop without being registered shall be required  to  pay  to  the
  people of this state a civil penalty in the sum of one thousand dollars.
  However, any such person against whom such penalty has been assessed may
  avoid  all  but  five  hundred  dollars  of  such penalty by obtaining a
  registration as required by this article, provided that application  for
  such registration is made not more than ten days after the imposition of
  such penalty.
    3.  (a)  Any  person  who operates a repair shop while his repair shop
  registration is revoked or suspended, shall pay to the  people  of  this
  state  a  civil  penalty  in the sum of one thousand dollars. Such civil
  penalty may not be avoided.
    (b) Any person who operates a repair shop without being registered  as
  required  by  subdivision one of section three hundred ninety-eight-c of
  this chapter who  has  previously  had  a  civil  penalty  assessed  for
  unregistered  operation  shall  pay  to the people of this state a civil
  penalty in the sum of one thousand dollars.  Such civil penalty may  not
  be avoided.
    4.  (a)  If  it is determined that a person has operated a repair shop
  without being registered as required by this article, such determination
  may be appealed to the review  board  established  pursuant  to  section
  three  hundred ninety-eight-f of this chapter. The procedure established
  in such section shall apply to such  appeals  provided  that  no  appeal
  shall  be  accepted  or  determined by the review board unless the civil
  penalty assessed against such person has  been  paid  as  prescribed  in
  subdivision two of this section.
    (b)  The  requirement  that the civil penalty be paid before an appeal
  can be accepted or determined by the review board shall not apply to  an
  appeal   by  a  repair  shop  from  a  determination  made  pursuant  to
  subdivision three of this section.
    (c)  If the review board finds that the person has not been  operating
  a repair shop without being registered, any civil penalty which has been
  paid  shall  be  refunded, any premises ordered to be sealed pursuant to
  subdivision five-a of this section shall be unsealed, and if such  board
  determines  that  registration  as  a  repair shop is not required and a
  registration has been obtained to avoid the civil penalty assessed,  the
  registration  shall  be cancelled and, notwithstanding the provisions of
  paragraph  (a)  of  subdivision   three   of   section   three   hundred
  ninety-eight-c  of  this  chapter,  all  fees paid for such registration
  shall be refunded.
    5. Civil penalties assessed under this section shall be  paid  to  the
  commissioner  for  deposit  into  the  state  treasury, and unpaid civil
  penalties may be recovered by the commissioner in a civil action in  the
  name  of  the commissioner. In addition, as an alternative to such civil
  action and provided that no proceeding for judicial review shall then be
  pending and the time  for  initiation  of  such  proceeding  shall  have
  expired,  the  commissioner may file with the county clerk of the county
  in which the registrant is located a final  order  of  the  commissioner
  containing  the amount of the penalty assessed. The filing of such final
  order shall have the full force and effect of a judgment  duly  docketed

  in  the  office of such clerk and may be enforced in the same manner and
  with the same effect as that provided by law in  respect  to  executions
  issued against property upon judgments of a court of record.
    5-a.  Sealing  of the premises. (a) In addition to any other penalties
  set forth in this article, the commissioner, after notice to  the  owner
  of  the  premises and the owner of the motor vehicle repair shop and the
  opportunity for a hearing, shall be authorized to
    (i) order the sealing of  the  premises  upon  which  any  person  has
  operated  a motor vehicle repair shop without being registered, provided
  that such premises is primarily used for  such  activity  and  provided,
  further, that the commissioner shall not seal any dwelling unit or other
  space lawfully used solely for residential purposes;
    (ii)  order that any devices, items or goods utilized in the operation
  of a motor vehicle repair shop and relating to such activity for which a
  registration for  operation  is  required  but  has  not  been  obtained
  pursuant  to  the provisions of this article shall be removed, sealed or
  otherwise made inoperable; and
    (iii) order the removal of motor vehicles on the premises to a garage,
  pound or other place of safety. For purposes of this article,  the  term
  "owner  of  the  premises"  shall  mean  the  owner,  lessor,  lessee or
  mortgagee of the building, erection  or  place  wherein  any  person  is
  operating an unregistered motor vehicle repair shop. The person in whose
  name  the  real  estate  affected  by  the orders of the commissioner is
  recorded in the office of the city register or the county clerk, as  the
  case may be, shall be presumed to be the owner thereof.
    (b)  The  lack  of  knowledge  of, acquiescence or participation in or
  responsibility for, the  operation  of  an  unregistered  motor  vehicle
  repair  shop,  on the part of the owner of the premises and/or the owner
  of the motor vehicle repair shop, shall not be a defense by such owners.
    (c) Orders of the commissioner issued pursuant  to  paragraph  (a)  of
  this  subdivision  shall  be  conspicuously  posted at the premises upon
  which unlawful operation occurred.
    (d) An order of the commissioner issued pursuant to paragraph  (a)  of
  this  subdivision  shall be stayed with respect to any person who, prior
  to service of the notice required by such  paragraph,  has  submitted  a
  complete  application,  in  proper form and accompanied by the requisite
  fee, for a certificate of registration to operate a motor vehicle repair
  shop or a renewal thereof, while the application is pending.
    (e) Ten days  after  the  posting  of  an  order  issued  pursuant  to
  paragraph (a) of this subdivision, and upon the written directive of the
  commissioner,  officers  and  employees  of  the  department  and police
  officers of any appropriate law enforcement agency shall  be  authorized
  to act upon and enforce such order. The commissioner may take such steps
  as  are lawful and necessary to prevent the removal from the premises of
  any devices, items, goods or personal property used in the conduct of  a
  motor vehicle repair shop business during such ten day period.
    (f)  (i)  Any devices, items, goods or motor vehicles removed pursuant
  to the provisions of subparagraphs (ii) and (iii) of  paragraph  (a)  of
  this  subdivision  shall  be stored in a garage, pound or other place of
  safety and the owner or other person lawfully entitled to the possession
  of such devices, items, goods or motor  vehicles  may  be  charged  with
  reasonable costs for removal and storage payable prior to the release of
  such devices, items, goods or motor vehicles to such owner or such other
  person.
    (ii)   The  commissioner  shall,  by  first  class  mail,  notify  the
  registered owner of any motor vehicle removed pursuant  to  subparagraph
  (iii)  of paragraph (a) of this subdivision within five business days of

  the removal, of the location of  such  motor  vehicle  and  the  actions
  necessary to recover such motor vehicle.
    (iii)  The  owner  or  other  person  lawfully entitled to reclaim the
  devices, items, goods or motor vehicles removed pursuant to this section
  shall reclaim such devices, items, goods or motor vehicles within ninety
  days of their removal, or such devices, items, goods or  motor  vehicles
  shall be subject to forfeiture upon notice and judicial determination in
  accordance  with the provisions of law. Upon forfeiture the commissioner
  shall, upon a public notice of at least five days, sell  such  forfeited
  devices,  items,  goods  or  motor  vehicles  at  public sale.   The net
  proceeds of such sale, after deduction of the lawful expenses  incurred,
  shall be paid into the general fund.
    (iv)  Lessors  of  devices,  items, goods or personal property removed
  pursuant to the provisions of subparagraph (ii) of paragraph (a) of this
  subdivision  may  reclaim  leased  devices,  items,  goods  or  personal
  property  upon  presentment  of  proof  that the lessor is not otherwise
  involved, directly or indirectly, in the ownership or operation of  such
  motor  vehicle repair shop and that the lessee is in breach of the lease
  or in default of payments, and upon  payment  of  any  reasonable  costs
  imposed  for  the  removal  and storage of such devices, items, goods or
  personal property pursuant to this subdivision.
    (g) The  commissioner  shall  order  any  premises  which  are  sealed
  pursuant to paragraph (a) of this subdivision to be unsealed upon:
    (i) payment of any and all fines, penalties and restitution; and
    (ii)  presentment  of  proof  that  the required registration has been
  obtained for operation of a motor vehicle repair shop on  the  premises,
  or proof satisfactory to the commissioner, submitted by the owner of the
  premises,  that  such  premises  will  not  be used in violation of this
  article.
    (h) In addition to any fines, penalties or actions taken with  respect
  to  a  motor  vehicle  repair  shop and the persons operating, providing
  equipment or otherwise involved in the  operations  of  such  shop,  the
  commissioner  may  also  take  action  with  respect to the owner of the
  premises where such shop has operated or is  operating  as  provided  in
  this paragraph. Upon a finding by the commissioner, after notice and the
  opportunity  for  a  hearing,  that an unregistered motor vehicle repair
  shop has been operated at the same premises  on  two  or  more  separate
  occasions  within  eighteen  months  resulting  in  two or more separate
  determinations by the commissioner of a violation of this  section  with
  respect  to  such premises, and that the owner of the premises knowingly
  allowed such operation, the commissioner may impose upon such  owner  of
  the premises a civil penalty in an amount not to exceed fifteen thousand
  dollars,  or may order the sealing of the premises for not more than one
  hundred eighty days, or both such actions.
    (i) Nothing contained herein  shall  be  construed  to  authorize  the
  commissioner  to  execute  an  order issued pursuant to this subdivision
  without  the  presence  and  assistance  of  a  police  officer  of   an
  appropriate law enforcement agency.
    (j)  Removal  of  the  seal  on  any  premises  sealed pursuant to the
  provisions of this subdivision shall constitute a misdemeanor.
    6. No allegation of unregistered operation as a repair shop  shall  be
  heard  or determined unless notice of such allegation has been mailed to
  such person within two years after the date of the alleged  unregistered
  operation.