OATH/ECB HEARING FAQS
1. What is the ECB or OATH – Hearing Division?
The OATH/ECB (the Environmental Control Board and the Office of Administrative Trials and Hearings – Hearing Division) is an administrative court that conducts hearings on violations and summonses issued by City agencies for “quality of life” infractions (those infractions involving the failure to protect health, safety and the environment). Some of the agencies that have their violations/summonses/tickets adjudicated at OATH/ECB include Department of Buildings (“DOB”), Fire Department of New York (FDNY”), Department of Sanitation of New York (“DSNY”), and Department of Environmental Protection (“DEP”).
The ECB was originally founded to serve as a relief to the New York City Criminal Courts where violations and summonses issued by the DOB and other City agencies were originally heard. Following a rebranding in 2016, most of the violations and summonses issued by DOB and the other City agencies are heard in the Office of Administrative Trials and Hearings – Hearing Division (also frequently referred to as OATH/ECB).
The OATH/ECB does not have an enforcement arm; meaning they are not the City body that issues violations/summonses/tickets. The OATH/ECB does not send inspectors to conduct inspections, lift stop work orders or vacate premises, assesse an agency’s civil penalties, issue permits, certificates of occupancies or licenses, and or accepts and reviews certificates of correction. Also since 2017, the OATH/ECB has moved away from setting the penalties associated with the violating conditions alleged in an agency’s summons or violation. OATH/ECB further does not have the power to review the enforcement agency’s practices. Even hearing penalties imposed are not paid to OATH/ECB but rather to the NYC Department of Finance although the payments can be made in person at the OATH/ECB locations listed below. OATH/ECB is a “neutral” adjudicator whose only role in the process is to decide whether you have provided a valid defense to the summonses or violations alleged by the enforcement agency.
2. Do I have to prove a negative? It is my burden as a homeowner to prove that I am not guilty or “in violation” of the Violation or Summons alleged?
Like in most legal proceeding, the burden of proof rests with the party bringing the charges or allegations. In other words, the City agency that makes the allegation that the law is being violated in a Summons, Violation or Ticket, must prove its case. However, unlike in criminal court where the prosecutor has to prove their case by the beyond a reasonable doubt standard, a very high standard, the prosecuting agency at OATH/ECB doesn’t have to do much to prove its case against you. The standard at OATH/ECB is called preponderance of evidence, meaning the City agency that violated you must simply prove that (like a coin toss) you more likely than not violated the law. Once an inspector or agent of the issuing agency swears to a summons, violation or ticket, there is a presumption that you, the recipient of the summons or the Responding Party (the Respondent) to the summons is guilty of the alleged charge. Functionally speaking, it is up to you, the Respondent, to provide a defense, as there is no presumption of innocence in these hearings.
3. Where is OATH/ECB Hearing located?
– Manhattan: 66 John St., 10th Fl., New York, NY 10038
– Bronx: 3030 Third Avenue, Bronx, NY 10455
– Brooklyn: 9 Bond St., 6 & 7th Floors, Brooklyn, NY 11201
– Queens: 31-00 47 Avenue. 3rd & 4th Floors, Long Island City, NY 11101
– Staten Island: 350 St. Marks Pl., Main Flr., Staten Island, NY 10301
– Hours: Monday to Friday from 8:00 am until 5:00 pm
– Phone: 844-OATH-NYC (844-628-4692)
4. What is a Violation or Summons?
A violation or summons (also sometimes referred to as a “Ticket”) is a legal document giving notice to a party/Respondent (usually a building owner, developer, contractors, small business and other individuals holding building and construction related licenses) that he or she is being charged with violating a NYC law and therefore liable for penalties. Summonses and Violations are heard and decided by the OATH/ECB. Summonses and Violations have penalties set by law. Some violating infractions have penalties that may be eligible for a “Cure” and “Mitigation” which is a reduction of the penalty as set forth by the agency in that agency’s governing penalty schedule or penalty rule. See our Searchable DOB Penalty Schedule for DOB Violations and Summons heard at OATH/ECB Court as an example.
5. How do I respond to a Summons or Violation?
If you are unfortunately the recipient of a summons or violation (the Respondent), there are several options available to you in responding. Those potential options may depend on the severity of the summons, the penalty amount and the type of summons. The Penalty Schedule (via the penalty rule) may even limit the options available to you. These options include, but are not limited to (1) admitting to the summons and paying the fine amount, (2) “curing” or entering into a penalty reduction stipulation when that option is available and (3) contesting the violating conditions alleged in the summons at a hearing. A failure to appear at a hearing after the summons or violation is scheduled for a hearing will result in a default judgment against the Respondent.
6. What is a “Default” Judgment?
A Default is an automatic “guilty” finding against the Respondent, where the Respondent or his or agent fails to appear and respond to the summons before the hearing officer or hearing judge. A default judgment is generally the worst outcome for a violation or summons because the default penalty amount may be five times (5X) the amount of the standard penalty.
7. I missed my hearing and am in default, now what?
If you missed your scheduled hearing, you will be found in “default”. A default judgment is the equivalent of being found guilty or “in violation,” except defaults will carry higher penalties. If you are in default, it is crucial to “vacate” the default judgment. To “vacate” a Default, the Respondent must file a motion to vacate by filling out paperwork requesting a new hearing, accompanied by any additional evidence or motions that may be relevant. It is important to address a default judgment immediately because the longer the delay, the more difficult and costly it will be. Equally as important is to do it right the first time. If a motion to vacate a default is denied, the only recourse maybe to commence an article 78 proceeding in Supreme Court which maybe costly and time intensive.
8. Do I have to attend my hearing?
While it is important to ensure someone attends the hearing on behalf of the Respondent to avoid a default judgment, you do not have to personally attend the hearing. You can authorize someone to attend on your behalf. You or someone on your behalf can also reschedule the hearing if it is the first scheduled hearing date. First time reschedules can be done by phone, in person or online. If the case has already been rescheduled you may request an adjournment to further prepare, to question the issuing officer or to hire an attorney. To request an adjournment, you or someone on your behalf must appear in person and make an oral application to the hearing officer (the judge) and they will consider the various factors to decide if an adjournment is warranted.
9. Should I hire a lawyer to handle an ECB or OATH matter?
Although there is no requirement by OATH/ECB to have a lawyer represent you at a hearing, it is important to ensure that your rights are being properly protected and that you are being advocated for in a diligent manner. Without adequate representation, you face the danger of substantial fines in addition to civil penalties by the issuing agency and further enforcement action.
Furthermore, the decision whether to hire a lawyer may depend on the complexity of your case and your comfort level hiring non-lawyers and general real estate consulting firms to handle legal matters.
Before you hire anyone, some simple due diligence should be done and should include the questions:
1. How knowledgeable is the person or firm I am considering in my matter?
2. What is their level of experience and familiarly with my particular matter?
3. Will my case get the personal attention it deserves or am I just another faceless name in a list of hundreds?
4. Is my potential representative willing to talk to me, take my phone calls and answer questions that I might have?
5. Will they put my interests ahead of their own?
See Why Choose Us for OATH/ECB Hearing Representation/Violation & Summons Defense
10. So what happens at an OATH/ECB on my hearing date?
Once you or your representative arrive at the hearing location, you must wait in line to sign in with the Clerk’s Office. Once you are signed in, the Clerk’s Office will prepare your case and place it in the docket where an available hearing officer (judge) takes your file. Until your case is called, you may wait in the waiting room. Depending on the agency, the borough and the case volume on that date, the wait can be anywhere from 2 to 4 hours. Once the hearing judge and an agency representative are ready, you will be called into the hearing room and the hearing will commence. In some cases the agency charging you with the summons or violations will not appear and the hearing judge will call your case without an agency representative.
Once in the hearing room, the hearing judge will start the digital recording, have the parties make their appearances and either hear the agency’s presentation or simply read the charging summons or violations into the record. The hearing judge will also give you an opportunity to present a defense if you have one or simply ask you to tell your side of the story. If you have a defense and the hearing judge agrees with your defense, the hearing judge will dismiss the case against you. A defense may be based on the (1) facts (whether the facts are true or not), (2) the provision of law charged or it could be (3) technical defense. Whatever defense or combination of defenses you present is best if supported by evidence such as witness testimonies (including affidavits from unavailable witnesses), photos, surveys, deeds and other supporting documentations. When presenting a legal defense, you can explain to the judge your interpretation of the law or submit or cite prior appeallate cases that supports your legal position. The hearing judge will consider all your evidence and/or presentation before rendering a decision. Where the hearing judge agrees with the summons or violation (after weighing it against your defenses), the hearing judge will likely find you “guilty” and impose a penalty. In most cases, the judge doesn’t make his or her decision at the hearing but instead will decide at a later time with you-the Respondent receiving the hearing decision by mail.
11. What are the penalties for a Violation or Summons?
The penalty per summons and violation ranges from $0 up to $25,000. In a few specific scenarios, the hearing penalty for a summons or violation will surpass $25,000. One such case is concerns Department of Buildings’ summonses and violations where a Respondent is accused of creating unpermitted Single Room Occupancies or illegal apartments. In such cases, a combined penalty for one summons or violation may go up to $60,000 (for each illegal apartment or SRO added). A violating condition’s penalty is in almost all cases set by law. This means the penalties where a Respondent is found “guilty” is predetermined and the hearing judge is likely to have no discretion to change that penalty amount. A searchable online DOB Penalty Schedule can be found here.
12-A. I was found “guilty” or “in violation” but I don’t agree with the hearing judge’s decision. What now?
Where you are found “guilty” or disagree with specific parts of the hearing judge’s decision, you may file an appeal of the hearing judge’s decision to the OATH/ECB’s Appeal Unit. All appeals are written. There is no in-person appearance at the OATH/ECB Appeals Unit, as there is no second hearing. Often the OATH/ECB Appeals Unit will not consider new evidence or new arguments made on appeal. These are evidence not submitted at the orginal hearing or arguments not made at the hearing. It is therefore important to have the right person making all the arguments at the hearing in order to make the proper “appeal points”. An appeal must be filed within 30 days of the mailed hearing decision. Where you believe that you will be unable to file the appeal within the thirty day filing-period, you may request an extension of time to file the appeal. You may also make an request to obtain the digital hearing record. All hearing penalties must be paid before a Respondent may file the appeal. Where a Respondent is unable to pay the penalties, Respondent may request a financial hardship waiver. The financial hardship waiver is not guaranteed and sensitive financial documents must be submitted to OATH/ECB to see whether a Respondent qualifies for the waiver.
The issuing agency can also appeal a hearing judge’s decision where the hearing judge found in your favor and dismissed the summons or violation. When that occurs, the Respondent may file a written response in opposition to the agency’s appeal.