Bill Text: NY S04827 | 2009-2010 | General Assembly | Introduced
Bill Title: Provides civil enforcement and penalties for operations in violation of the banking law which are not authorized by the superintendent of banking.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-01-06 - REFERRED TO BANKS [S04827 Detail]
Download: New_York-2009-S04827-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4827
2009-2010 Regular Sessions
I N S E N A T E
April 27, 2009
___________
Introduced by Sen. FARLEY -- read twice and ordered printed, and when
printed to be committed to the Committee on Banks
AN ACT to amend the banking law, in relation to the enforcement of
provisions relating to unlicensed operations
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The banking law is amended by adding a new section 44-b to
2 read as follows:
3 S 44-B. CIVIL ENFORCEMENT PROCEEDINGS AND CIVIL PENALTIES. 1. ISSU-
4 ANCE OF CEASE AND DESIST ORDER. WHENEVER THE DEPARTMENT HAS REASONABLE
5 CAUSE TO BELIEVE THAT ANY PERSON HAS VIOLATED ANY PROVISION OF THIS
6 CHAPTER BY OPERATING WITHOUT THE REQUIRED AUTHORIZATION OF THE SUPER-
7 INTENDENT, THE DEPARTMENT MAY ISSUE AND SERVE UPON SUCH PERSON A NOTICE
8 TO CEASE AND DESIST FROM SUCH VIOLATION. SUCH CEASE AND DESIST ORDER
9 SHALL BE SERVED PERSONALLY BY THE DEPARTMENT. IF PERSONAL SERVICE CAN
10 NOT BE MADE AFTER DUE DILIGENCE AND SUCH FACT IS CERTIFIED UNDER OATH, A
11 COPY OF THE ORDER SHALL BE MADE BY CERTIFIED MAIL, RETURN RECEIPT
12 REQUESTED, TO THE PERSON'S LAST KNOWN ADDRESS BY THE DEPARTMENT.
13 2. CONTENTS OF CEASE AND DESIST ORDER. THE CEASE AND DESIST ORDER
14 SHALL BE IN WRITING AND SHALL DESCRIBE WITH PARTICULARITY THE NATURE OF
15 THE VIOLATION, INCLUDING A REFERENCE OF THE SPECIFIC PROVISION OR
16 PROVISIONS OF LAW ALLEGED TO HAVE BEEN VIOLATED AND AN ORDER TO THE
17 RESPONDENT TO CEASE ANY UNLAWFUL ACTIVITY. THE CEASE AND DESIST ORDER
18 SHALL ADVISE THE RESPONDENT (A) OF THE RIGHT TO CONTEST THE ORDER BY
19 REQUESTING A HEARING WITHIN THIRTY DAYS OF THE SERVICE OF THE CEASE AND
20 DESIST ORDER BEFORE A HEARING OFFICER DESIGNATED BY THE DEPARTMENT (B)
21 OF THE RIGHT TO REQUEST A STAY OF THE CEASE AND DESIST ORDER AT THE TIME
22 A HEARING IS REQUESTED AND (C) SHALL SET FORTH THE RESPONDENT'S RIGHTS
23 AT SUCH A HEARING PURSUANT TO SUBDIVISION FIVE OF THIS SECTION.
24 3. CIVIL PENALTIES. CIVIL PENALTIES UP TO FIVE THOUSAND DOLLARS PER
25 DAY MAY BE IMPOSED FOR EACH VIOLATION AND THE RESPONDENT MAY BE ORDERED
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10520-01-9
S. 4827 2
1 TO MAKE RESTITUTION TO ANY PERSON WHO HAS AN INTEREST IN ANY MONEY OR
2 PROPERTY, EITHER REAL OR PERSONAL, ACQUIRED BY THE RESPONDENT AS A
3 RESULT OF A VIOLATION. WHENEVER THE DEPARTMENT CONCLUDES THAT CIVIL
4 PENALTIES AND/OR RESTITUTION MAY BE WARRANTED BECAUSE OF THE EGREGIOUS-
5 NESS OF THE UNLAWFUL ACTIVITY, IT MAY SERVE, ALONG WITH THE CEASE AND
6 DESIST ORDER, A NOTICE OF A HEARING ON THE ALLEGATIONS OF UNLAWFUL
7 ACTIVITY AND THE DEPARTMENT'S INTENTION TO ORDER THE RESPONDENT TO MAKE
8 RESTITUTION AND/OR IMPOSE A CIVIL PENALTY. THE NOTICE SHOULD SPECIFY THE
9 CIVIL PENALTY SOUGHT FOR EACH VIOLATION.
10 4. REQUEST FOR HEARING. IF THE RESPONDENT TO A CEASE AND DESIST ORDER
11 CONTESTS THE CEASE AND DESIST ORDER, THE RESPONDENT SHALL REQUEST A
12 HEARING CONDUCTED BY THE DEPARTMENT WITHIN THIRTY DAYS OF THE RECEIPT OF
13 THE CEASE AND DESIST ORDER. SUCH A HEARING SHALL BE SCHEDULED, AND THE
14 REQUESTING PARTY NOTIFIED OF THE DATE, WITHIN FIFTEEN DAYS OF THE
15 RECEIPT OF THE REQUEST FOR A HEARING. IF THE RESPONDENT REQUESTS A STAY
16 OF THE CEASE AND DESIST ORDER, THE HEARING OFFICER SHALL DETERMINE
17 WHETHER THE CEASE AND DESIST ORDER SHOULD BE STAYED IN WHOLE OR IN PART
18 WITHIN FIVE WORKING DAYS OF THE REQUEST FOR A STAY. THE RESPONDENT MAY
19 FILE A WRITTEN ANSWER TO THE CEASE AND DESIST ORDER PRIOR TO THE HEAR-
20 ING. A STENOGRAPHIC RECORD OF THE HEARING SHALL BE MADE.
21 5. CONDUCT OF HEARING. THE EVIDENCE IN SUPPORT OF THE CEASE AND DESIST
22 ORDER SHALL BE PRESENTED BY AN ATTORNEY FOR THE DEPARTMENT. THE RESPOND-
23 ENT MAY APPEAR PERSONALLY AND MAY BE REPRESENTED BY COUNSEL AT THE HEAR-
24 ING, MAY PRODUCE WITNESSES AND EVIDENCE IN HIS OR HER BEHALF AT THE
25 HEARING, MAY CROSS-EXAMINE WITNESSES AND EXAMINE EVIDENCE PRODUCED
26 AGAINST HIM OR HER AT THE HEARING, AND MAY ISSUE SUBPOENAS IN ACCORDANCE
27 WITH SECTION THREE HUNDRED FOUR OF THE STATE ADMINISTRATIVE PROCEDURE
28 ACT. THE HEARING OFFICER SHALL NOT BE BOUND BY THE RULES OF EVIDENCE,
29 BUT HIS OR HER DETERMINATION THAT A VIOLATION OF THIS CHAPTER HAS
30 OCCURRED SHALL BE BASED ON A PREPONDERANCE OF THE EVIDENCE. A HEARING
31 WHICH HAS BEEN INITIATED SHALL NOT BE DISCONTINUED BECAUSE OF THE DEATH
32 OR INCAPACITY OF THE HEARING OFFICER. IN THE EVENT OF A HEARING OFFI-
33 CER'S DEATH OR INCAPACITY TO SERVE, A NEW HEARING OFFICER SHALL BE
34 DESIGNATED BY THE DEPARTMENT TO CONTINUE THE HEARING. THE NEW HEARING
35 OFFICER SHALL AFFIRM IN WRITING THAT HE OR SHE HAS READ AND CONSIDERED
36 EVIDENCE AND TRANSCRIPTS OF THE PRIOR PROCEEDINGS.
37 6. RESULTS OF HEARING. THE HEARING OFFICER DESIGNATED BY THE DEPART-
38 MENT SHALL RENDER A WRITTEN REPORT WHICH SHALL INCLUDE (A) FINDINGS OF
39 FACT, (B) A DETERMINATION ON EACH VIOLATION ALLEGED IN THE CEASE AND
40 DESIST ORDER, (C) A DETERMINATION AS TO WHETHER TO ACCEPT, REJECT, OR
41 MODIFY ANY OF THE TERMS OF THE CEASE AND DESIST ORDER IN WHOLE OR IN
42 PART, AND (D) THE CIVIL PENALTY IMPOSED, IF ANY. A COPY OF THE HEARING
43 OFFICER'S WRITTEN REPORT SHALL BE SERVED UPON THE RESPONDENT WITH A
44 NOTICE SETTING FORTH THE RESPONDENT'S RIGHTS TO AN ADMINISTRATIVE APPEAL
45 WITHIN TEN DAYS OF THE CONCLUSION OF THE HEARING.
46 7. APPEALS. THE DECISION OF THE HEARING OFFICER SHALL BE FINAL, EXCEPT
47 THAT IT MAY BE APPEALED TO THE SUPERINTENDENT WITHIN TWENTY DAYS OF THE
48 RECEIPT OF THE HEARING OFFICER'S REPORT. THE INITIATION OF AN APPEAL
49 SHALL NOT IN AND OF ITSELF AFFECT THE VALIDITY OR TERMS OF THE CEASE AND
50 DESIST ORDER. THE REVIEW SHALL BE BASED ON THE TRANSCRIPT AND THE
51 REPORT OF THE HEARING OFFICER. THE RESPONDENT MAY APPEAR AT THE MEETING,
52 AND THE SUPERINTENDENT MAY REQUIRE THE RESPONDENT TO APPEAR. THE
53 RESPONDENT MAY BE REPRESENTED BY COUNSEL. THE DEPARTMENT SHALL NOTIFY
54 THE RESPONDENT AT LEAST TEN DAYS BEFORE THE MEETING (A) OF THE TIME AND
55 PLACE OF THE MEETING, (B) OF THE RIGHT TO APPEAR, (C) OF THE RIGHT TO BE
56 REPRESENTED BY COUNSEL, (D) WHETHER OR NOT THE RESPONDENT IS REQUIRED TO
S. 4827 3
1 APPEAR, AND (E) OF SUCH OTHER INFORMATION AS MAY BE CONSIDERED APPROPRI-
2 ATE. AFTER THE MEETING, THE SUPERINTENDENT (I) SHALL CONSIDER THE TRAN-
3 SCRIPT AND THE REPORT OF THE HEARING OFFICER, (II) SHALL DECIDE WHETHER
4 THE RESPONDENT HAS VIOLATED EACH CHARGE IN THE CEASE AND DESIST ORDER,
5 (III) SHALL DECIDE WHAT PENALTIES, IF ANY, TO IMPOSE AS PRESCRIBED IN
6 THIS SECTION, AND (IV) SHALL ISSUE AN ORDER TO CARRY OUT HIS OR HER
7 DECISIONS. THE ORDER SHALL BE SERVED UPON THE RESPONDENT PERSONALLY OR
8 BY CERTIFIED MAIL TO THE RESPONDENT'S LAST KNOWN ADDRESS AND SUCH
9 SERVICE SHALL BE EFFECTIVE AS OF THE DATE OF THE PERSONAL SERVICE OR
10 FIVE DAYS AFTER MAILING BY CERTIFIED MAIL. THE DECISIONS OF THE SUPER-
11 INTENDENT UNDER THIS SECTION MAY BE REVIEWED IN A PROCEEDING PURSUANT TO
12 ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES BROUGHT IN THE
13 SUPREME COURT, ALBANY COUNTY. SUCH DECISIONS SHALL NOT BE STAYED OR
14 ENJOINED EXCEPT UPON APPLICATION TO SUCH SUPREME COURT PURSUANT TO ARTI-
15 CLE SIXTY-THREE OF THE CIVIL PRACTICE LAW AND RULES WITH NOTICE TO THE
16 DEPARTMENT AND TO THE ATTORNEY GENERAL.
17 8. GENERAL ENFORCEMENT OF CEASE AND DESIST ORDER. IN ANY CASE WHERE
18 THE CEASE AND DESIST ORDER IS CONFIRMED BY THE SUPERINTENDENT OR WHERE
19 THE RESPONDENT DOES NOT REQUEST AN ADMINISTRATIVE HEARING WITHIN THE
20 ALLOTTED TIME OR DOES NOT APPEAL THE DECISION OF THE HEARING OFFICER
21 WITHIN THE ALLOTTED TIME, AN ACTION OR PROCEEDING MAY BE FILED IN THE
22 NAME OF THE STATE OF NEW YORK SEEKING A RESTRAINING ORDER, INJUNCTION,
23 APPROPRIATE WRIT, OR JUDGMENT AGAINST ANY PERSON WHO VIOLATES THE TERMS
24 OF THE CEASE AND DESIST ORDER.
25 9. SPECIAL ENFORCEMENT OF CIVIL MONETARY PENALTIES. PROVIDED THAT NO
26 APPEAL IS PENDING ON THE IMPOSITION OF SUCH CIVIL PENALTY, IN THE EVENT
27 SUCH CIVIL PENALTY IMPOSED BY THE DEPARTMENT REMAINS UNPAID, IN WHOLE OR
28 IN PART, MORE THAN FORTY-FIVE DAYS AFTER WRITTEN DEMAND FOR PAYMENT HAS
29 BEEN SENT BY FIRST CLASS MAIL TO THE ADDRESS OF THE RESPONDENT, A NOTICE
30 OF IMPENDING DEFAULT JUDGMENT SHALL BE SENT BY FIRST CLASS MAIL TO THE
31 RESPONDENT. THE NOTICE OF IMPENDING DEFAULT JUDGMENT SHALL ADVISE THE
32 RESPONDENT: (A) THAT A CIVIL PENALTY WAS IMPOSED ON THE RESPONDENT; (B)
33 THE DATE THE PENALTY WAS IMPOSED; (C) THE AMOUNT OF THE CIVIL PENALTY;
34 (D) THE AMOUNT OF THE CIVIL PENALTY THAT REMAINS UNPAID AS OF THE DATE
35 OF THE NOTICE; (E) THE VIOLATIONS FOR WHICH THE CIVIL PENALTY WAS
36 IMPOSED; AND (F) THAT A JUDGMENT BY DEFAULT WILL BE ENTERED IN THE
37 SUPREME COURT, ALBANY COUNTY UNLESS THE DEPARTMENT RECEIVES FULL PAYMENT
38 OF ALL CIVIL PENALTIES DUE WITHIN TWENTY DAYS OF THE DATE OF THE NOTICE
39 OF IMPENDING DEFAULT JUDGMENT. IF FULL PAYMENT SHALL NOT HAVE BEEN
40 RECEIVED BY THE DEPARTMENT WITHIN THIRTY DAYS OF MAILING OF THE NOTICE
41 OF IMPENDING DEFAULT JUDGMENT, THE DEPARTMENT SHALL PROCEED TO ENTER
42 WITH SUCH COURT A STATEMENT OF THE DEFAULT JUDGMENT CONTAINING THE
43 AMOUNT OF THE PENALTY OR PENALTIES REMAINING DUE AND UNPAID, ALONG WITH
44 PROOF OF MAILING OF THE NOTICE OF IMPENDING DEFAULT JUDGMENT. THE FILING
45 OF SUCH JUDGMENT SHALL HAVE THE FULL FORCE AND EFFECT OF A DEFAULT JUDG-
46 MENT DULY DOCKETED WITH SUCH COURT PURSUANT TO THE CIVIL PRACTICE LAW
47 AND RULES AND SHALL IN ALL RESPECTS BE GOVERNED BY THAT CHAPTER AND MAY
48 BE ENFORCED IN THE SAME MANNER AND WITH THE SAME EFFECT AS THAT PROVIDED
49 BY LAW IN RESPECT TO EXECUTION ISSUED AGAINST PROPERTY UPON JUDGMENTS OF
50 A COURT OF RECORD. A JUDGMENT ENTERED PURSUANT TO THIS SUBDIVISION
51 SHALL REMAIN IN FULL FORCE AND EFFECT FOR EIGHT YEARS NOTWITHSTANDING
52 ANY OTHER PROVISION OF LAW.
53 S 2. This act shall take effect immediately.
