N.Y. Defense Emergency Act 1951 784/51 § 37: Consumer protection against substandard shelters

§ 37. Consumer protection against substandard shelters. 1. It shall be

unlawful for any person, firm, association or corporation, or for any

agent, officer, employee or member thereof to fail to make prompt and

full disclosure of the fact that a facility does not comply with the

plan, regulations or orders of the commission which are in effect

pertaining to shelters:

(a) in selling or in offering for sale,

(b) in constructing or in offering to construct, or

(c) in altering or improving or in offering to alter or improve any

area or portion of a building, structure or other real property in order

to provide

any facility which is represented, either expressly or impliedly, to

reduce the intensity of fallout radiation and which fails to comply in

this respect with such plan, regulations or orders of the commission.

Such disclosure shall be made in such form and manner as the commission

may by regulation prescribe.

2. For purposes of this section, the plan, regulations or orders of

the commission pertaining to shelters and to the form and manner by

which disclosure is to be made shall take effect thirty days after

filing by the commission in the office of the department of state.

3. Any person, firm, association or corporation, or any agent,

officer, employee or member thereof, who violates the provisions of

subdivision one of this section shall be guilty of a misdemeanor and on

conviction thereof shall, if a natural person, be punished by a fine not

exceeding five hundred dollars, or by imprisonment for not longer than

six months; and if a firm, association or a corporation by a fine of not

exceeding five thousand dollars.

4. In the alternative, any person, firm, association or corporation,

or any agent, officer, employee or member thereof, who violates any of

the provisions of subdivision one of this section shall be subject, if a

natural person, to a civil penalty not exceeding five hundred dollars,

and, if a firm, association or corporation to a civil penalty not

exceeding five thousand dollars.

5. Whenever the state director shall know or have a reasonable basis

to believe that there has been a violation of the provisions of

subdivision one of this section, he shall report all facts supporting

such knowledge or belief to the attorney general unless he determines to

proceed administratively pursuant to subdivision eight of this section.

The attorney general may prosecute any person, firm, association or

corporation, or any agent, officer, employee or member thereof, charged

with violating the provisions of subdivision one of this section. In all

such criminal proceedings the attorney general may appear in person or

by his deputy before any court of record or any grand jury and exercise

all the powers and perform all the duties in respect thereof which the

district attorney would otherwise be authorized or required to exercise

or perform; or the attorney general may in his discretion transmit

evidence, proof and information as to such offense to the district

attorney of the county in which the accused resides or has its principal

office or to the district attorney of the county in which the alleged

violation has occurred, and every district attorney to whom such

evidence, proof and information is so transmitted shall forthwith

proceed to prosecute the person, firm, association or corporation, or

any agent, officer, employee or member thereof charged with such

violation. In any proceeding wherein the attorney general has appeared

in person or by deputy, the district attorney shall exercise only such

powers and perform only such duties as are required of him by the

attorney general or his deputy.

Alternatively, the attorney general may cause an action or proceeding

to be brought in the name and in behalf of the people of the state

against any person, firm, association or corporation, or any agent,

officer, employee or member thereof for the recovery of the civil

penalty referred to in subdivision four of this section. Such action may

be brought in the county where the defendant resides or has its

principal office or in the county where the alleged violation has

occurred.

Every action or proceeding, criminal or civil, brought pursuant to

this section must be commenced within three years after the commission

of the acts upon which the action or proceeding is based.

6. All moneys recovered as penalties or fines pursuant to this section

shall be the property of the state.

7. A violation of the provisions of this section shall not be

considered an infraction for purposes of this act.

8. (a) The state director may, on his own motion, investigate or make

inquiry as to any suspected failure to comply with the provisions of

subdivision one of this section.

(b) Whenever it shall appear to the state director, after

investigation, that there has been a violation of the provisions of

subdivision one of this section, he may give written notice to the

alleged violator or violators

(i) setting forth the circumstances upon which the alleged violation

is based, and

(ii) requiring each respondent to appear in person or by attorney

before the state director or his duly designated representative, at the

time and place specified and answer the charges set forth.

At least twenty days notice of such hearing shall be given.

(c) The state director, or any person designated by him for this

purpose, may issue subpoenas and administer oaths in connection with any

investigation or hearing conducted pursuant to this subdivision, and it

shall be the duty of the state director and any persons designated by

him for such purpose to issue subpoenas at the request of and in behalf

of any respondent.

(d) The state director, or any person designated by him for this

purpose, shall not be bound by the law of evidence in conducting the

hearing, but any determination shall be founded upon sufficient legal

evidence to sustain it.

(e) In the hearing, each respondent shall have the right to cross

examine witnesses against him and to produce witnesses and evidence in

his defense.

(f) Upon the conclusion of the hearing, the state director or other

person conducting the hearing shall make such findings and

determinations as he deems warranted by the legal evidence before him

and if a violation of the provisions of subdivision one of this section

is found and determined, the state director may assess a penalty not

exceeding five hundred dollars for each such violation if the respondent

is a natural person and not exceeding five thousand dollars for each

such violation if the respondent is a firm, association or corporation.

The state director shall notify the respondent personally of such

decision in writing or by certified mail.

(g) All findings, determinations and assessments of the state director

pursuant to this subdivision shall be subject to review as provided in

article seventy-eight of the civil practice law and rules. Application

for such review must be made within sixty days after receipt by the

respondent of notification of the decision of the state director.

9. In construing and enforcing the provisions of this section the

action of an agent, officer, employee or member of a person, firm,

association or corporation shall be presumed to be the act of such

person, firm, association or corporation.