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IN RE: the Application of Wayne MILLER, Petitioner, v. NEW YORK OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS, New York City Environmental Control Board, Department of Buildings of the City of New York, and the City of New York, Respondents.
According to the petition, petitioner has held a hoisting machine operator's license, Class A (license), since 2001. Petitioner was at work at 461 Dean Street in Brooklyn (the project) on around April 14, 2016, when Department of Buildings (DOB) Inspector Hugh McQuillan issued a notice of violation (NOV) to J.F. Stearns Comp. LLC which shut down the hoisting operation at the project. Around August 29, 2016, petitioner received NOV number 35116834Z. The NOV alleged that petitioner had violated section 28–405.1 of the New York City Construction Code (Administrative Code § 28–405.1), which requires individuals operating hoisting machines to be properly licensed. The NOV states petitioner had used a “power-operated hoisting machine without a hoisting machine operator's license.” The inspector added that he observed petitioner “operating Tower Crane CD No.4499 without the proper endorsement.” To remedy the problem, the NOV states, petitioner had to “obtain proper endorsement to operate a tower crane.” The NOV scheduled a hearing for October 17, 2016, but the hearing did not occur until December 28, 2016. Administrative Judge Craig Porges (the administrative judge) of respondent New York Office of Administrative Trials and Hearings (OATH), Environmental Control Board, presided over the hearing. Both parties were represented by counsel.
At the hearing, Inspector McQuillan testified that on the date he issued the NOV, he asked to see petitioner's license, which did not contain the crane license endorsement for a Tower type crane. He also submitted photographs of petitioner's license to show that petitioner lacked the proper certification. Moreover, the license had been issued in January 2015. Because petitioner was required to obtain the Tower certification within one year, the inspector stated, petitioner was in violation of the pertinent regulations.
In response, petitioner argued that he was not in violation of the Administrative Code provision cited in the NOV, as this merely required him to obtain a Class A operating license, which he already had. Over petitioner's objection, Administrative Judge Porges allowed respondent the City of New York to amend the NOV. The NOV as amended alleged that petitioner violated 1 RCNY § 104–09 (b) (2) (i), which states, as to the required certifications,
For Class A Hoisting Machine Operators ․ one or more valid certification(s) issued by an organization accredited to offer crane operator certifications by the National Commission for Certifying Agencies (NCCA) or the American National Standards Institute (ANSI) and acceptable to the Commissioner. For Class A Hoisting Machine Operators ․ such certification must be obtained within one year of renewal. The certification(s) shall authorize the operation of the type of equipment for which the license is held or sought and the licensee shall provide to the Department a copy of the certification(s), a copy of future re-certifications and documentation of new specialties acquired. The applicable certification(s) must be maintained continuously for the duration of the license term.
The administrative judge found that amendment was proper because 1) the subject of the amendment was within the scope of the NOV, 2) the amendment did not add violations, 3) the amendment does not refer to later occurrences, and 4) the NOV provided petitioner with adequate notice of the actual allegation. He further noted that despite petitioner's objection, his attorney did not request an adjournment to respond to the amendment and counsel specifically stated her arguments against the NOV remained the same. As such, the NOV articulated a valid claim against petitioner which was supported by the evidence. The judge dismissed another violation asserted against petitioner, finding that in that instance he satisfied his burden. On the claim he sustained, the judge applied the statutory penalty of $1600.00.
Petitioner appealed to the appeals board, which affirmed the administrative judge's finding. It concluded that, for the reasons stated by the judge, the amendment of the charge was proper. It agreed that the City satisfied its evidentiary burden. It determined that the pertinent rule was duly promulgated and in effect, and the appeals board had no power to declare otherwise. The board refused to consider petitioner's new argument that the provision on which respondent relied was inapplicable, as it was raised for the first time on appeal. Nevertheless, the appeals board discussed petitioner's new argument—that the provision on which respondent relied is inapplicable, as it relates to renewals and reinstatements of licenses, and there is no evidence that a renewal or reinstatement of a license at issue here & and found that it lacked merit. The board pointed out that petitioner obtained a renewal license on January 26, 2016 without obtaining the necessary certification, and the rule in question had been in effect since October 15, 2014. Therefore, the provision was applicable.
After the issuance of the above decision, petitioner commenced this proceeding. Here, petitioner argues that the administrative judge's determination was arbitrary and capricious because the amendment of the NOV was improper and effectively asserted a new claim. Petitioner states he is prejudiced because he had a complete defense to the claim that he violated the Administrative Code. The judge and the inspector had no power to declare that he had violated a condition for renewal of the license, petitioner claims, because he lacked notice and an opportunity to be heard on the issue, and because the rule in question does not set forth a viable cause of action. He argues that the board irrationally refused to consider his argument relating to the applicability of 1 RCNY § 104–09 (b) to his case. He said that the Administrative Code authorized him, under his license, to use a Tower hoist, and that nothing in the RCNY has the power to deprive him of this right. He seeks a reversal of the finding that he was guilty of the violation in question and further asks that this Court direct respondents to refund his $1600.00 penalty.
Initially, the Court rejects respondents' argument that transfer to the Appellate Division is proper. Petitioner does not challenge the administrative judge's findings of fact or of determinations as to the credibility of the witnesses. Instead, petitioner challenges respondents' interpretation of the Administrative Code and the Rules of the City of New York. Where, as here, legal questions are involved, transfer is not appropriate (Cannings v. State of New York Dep't of Motor Vehicles Appeals Board, 84 AD3d 610, 610 [1st Dept. 2011] ).
Next, the Court concludes that the OATH judge and the appeals board did not err when they found that it was proper to allow the amendment of the NOV. An OATH administrative judge may allow amendment of the NOV “at any time” if the amendment is “within the scope of the original summons,” does not include additional violations or new acts, does not add acts that occurred after the NOV was served, and does not deprive the applicant of adequate notice (48 RCNY § 6–13 [e (1–4) ] ). In allowing the amendment, the administrative judge considered all four of these factors. The original NOV referred to the Administrative Code but the investigator's “narrative,” which is contained in the NOV, referred to the requirement that is expressly set forth in RCNY § 104–09 (b). Moreover, as stated above, the administrative judge made rational findings as to the other factors as well. Petitioner's argument that he was deprived of notice and an opportunity to be heard on the amended NOV lacks merit because the administrative judge provided petitioner with this opportunity when he offered petitioner additional time to prepare opposition to the amended NOV. It was petitioner who rejected this opportunity, implicitly indicating a lack of prejudice.
Petitioner's challenges to the legality of the decision and appeal also lack merit. As respondents point out, under section 1043 of the New York City Charter, “[e]ach agency is empowered to adopt rules necessary to carry out the powers and duties delegated to it by or pursuant to federal, state, or local law” (see also Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dep't of Health & Mental Hygiene, 23 NY3d 681, 695  [Statewide Coalition] [citing City Charter § 1043] ). A rule in RCNY therefore has the force of a law without being a law. Instead, it “implements or applies law or policy” (Statewide Coalition, 34 NY3d at 695). Here, respondents correctly interpreted the laws at issue when they did not find any inconsistency between the Administrative Code and the RCNY. The Administrative Code provides the general parameters for the hoisting machine operator's license but does not preclude the requirement that certifications are required to operate specific types of hoisting machines. The Court further notes that petitioner did not lose his hoisting machine operator's license or the ability to operate machines for which he had the requisite certification and for which certification was not required. Instead, he simply was fined for the violation. He has since obtained the necessary certification and is able to operate a Tower crane.
The cases upon which petitioner relies are not persuasive. Kreitzer v. New York City Dep't of Buildings (24 AD3d 374 [1st Dept. 2005], lv denied, 6 NY3d 715  ) states that DOB cannot “engraft” language from one Code provision into another Code provision and, based on the added rule, nullify the issuance of a license. As stated, petitioner's license was not nullified, but instead he had to obtain certification to operate the Tower crane. In Matter of Auringer v. Dep't of Buildings (24 AD3d 162, 163 [1st Dept 2005] ), the First Department held that it was irrational to read the requirement that an individual has two years of “appropriate” experience to require the applicant to have worked full-time during the two-year period. Nothing in the RCNY reinterprets the Administrative Code in this manner. Similarly, Kunkel v. Office of Administrative Trials and Hearings (Sup Ct, NY County, August 20, 2016, Ramos, J., Index No. 101687/2015) found a ruling arbitrary when, although the pertinent rule permits a learner may operate a crane or a derrick 1 under the direct supervision of a licensed operator, the administrative law judge added his own requirement, that the learner in question needed a Class B license before he or she can work under this direct supervision. Here, all the specifications are contained within the relevant code and rule.
Finally, the Court finds no merit to petitioner's argument that the appeals board should have considered his argument that 1 RCNY § 104–09 (b) applies to renewal and reinstatement licenses only and there was no evidence that his license fell into either of these categories. Just as this Court can only consider the arguments raised in the administrative proceedings (Matter of 10th St. Assoc., LLC v. New York State Div. of Housing & Community Renewal, 110 AD3d 605, 605 [1st Dept 2013] ), an appeals board is limited to a review of what went on at the hearing. In addition, the appeals board went on, in dicta, to discuss petitioner's argument. Moreover, in this discussion, the board noted that there was no merit to the argument because petitioner's license was a renewed license and therefore fell within the ambit of 1 RCNY § 104–09 (b).
The Court has considered the parties' additional arguments and they do not alter the Court's conclusion. Accordingly, it is
ORDERED that the petition is dismissed.
1. A derrick is another lifting devise, which operates similarly to a crane.
Carmen Victoria St. George, J.
Response sent, thank you
Docket No: 101352/2017
Decided: May 18, 2018
Court: Supreme Court, New York County, New York.
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