Title 19 Part 400

The Secretary of State has authority under article 3 of the State Administrative Procedure Act to provide for adjudicatory proceedings and appeals pertaining to matters within the secretary's statutory jurisdiction. It is the intent and purpose of these regulations to afford all those appearing in any hearing subject to the Part due process of law and an opportunity to be heard, while at the same time ensuring protection of the public health, safety and general welfare.

All adjudicatory proceedings will be conducted under the rules enunciated by articles 3, 4 and 5 of the State Administrative Procedure Act, the definition of the State Administrative Procedure Act pertaining thereto, any other licensing statute under the jurisdiction of the Secretary of State, the Civil Practice Law and Rules as the same may be reasonably be applied and the Constitution of the State of New York as these statutes and constitution are now stated or may be amended in the future. In all instances, due process of law will be observed. An administrative law judge shall have all the authority which the Secretary of State may grant pursuant to the State Administrative Procedure Act or any other pertinent statute, including, but without limitation, the authority to direct disclosure under section 305 of the State Administrative Procedure Act.

Subpoenas may be issued by the administrative law judge or any attorney for a party who has been duly admitted to the practice of law in the State of New York. Subpoenas shall be served in any manner permitted by the Civil Practice Law and Rules unless otherwise provided by applicable statutes administered by this department.

When a verified statement is required or deemed desirable by any party, it shall be sufficient for the deponent to subscribe a statement at the end thereof that the “foregoing statement is affirmed under penalties of perjury.” A statement verified before a notary public will be equally acceptable.

Every notice of hearing served shall be served with a copy of these rules, a copy of articles 3, 4 and 5 of the State Administrative Procedure Act and relevant definitions under section 102 of the State Administrative Procedure Act. A summary of these rules will be prepared and made available to the public on request and served with a notice of hearing on any respondent.

Any person compelled to appear in person or who voluntarily appears before the agency shall be accorded the right to be accompanied, represented and advised by counsel. In a proceeding before the agency, every party or person shall be accorded the right to appear in person or by or with counsel. Nothing in this section shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for or represent others before the agency. In accordance with section 166 of the Executive Law, any such representative will file a notice of appearance with the administrative law judge on forms provided by the Department of State and state whether a fee is being paid therefor.

Any party may submit proposed findings of fact within time limitations set by the administrative law judge. Such findings of fact shall be captioned, entitled as such, shall be consecutively numbered and shall be typed legibly on plain, white bond, standard weight paper, 8 1/2 × 11 inches in size. Such proposed findings of fact shall recite basic facts and not evidentiary facts and shall not be conclusions of law. A basic fact would be “John Jones visited Syracuse,” and not “John Jones testified that he visited Syracuse,” which is an evidentiary fact. A conclusion of law would be “John Jones has demonstrated untrustworthiness within the meaning of section 441-c of the Real Property Law.” In general, it is expected that the complaint will allege the basic facts which would otherwise be contained in a statement of proposed findings of fact. In accordance with section 301(1) of the State Administrative Procedure Act, the person assigned to render a decision will rule on each finding of fact. Such decision maker will do so by marking the instrument setting forth the proposed findings of fact a part of the decision and noting in the margin thereof the ruling,

i.e.,

“Found,” “Not Found,” “Irrelevant,” “Evidentiary,” “Conclusion of Law,” which rulings may be abbreviated meaningfully. The body of the decision will contain such findings of fact as the decision maker deems relevant, but need not be expressed in the same language as presented in the proposed findings.