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Friday, April 30, 2010

Retroactive application of a law, rule or regulation

Retroactive application of a law, rule or regulation
St.Clair Nation v City of New York, Court of Appeals, 2010 NY Slip Op 03471, Decided on April 29, 2010

May the provisions of a law, rule or regulation be applied to the individual with respect to his or her conduct prior to the effective date of the law, rule or regulation? This was the significant issue in Leon St.Clair Nation v City of New York.

St. Clair Nation, an engineer licensed by the New York State Department of Education, was alleged to have placed his seal on digitally altered photographs submitted to the New York City Department of Buildings [DOB] in connection with a pavement plan for a building under construction in Brooklyn. It was further alleged that he subsequently attested the accuracy of a falsified photograph in support of another pavement plan for a separate Brooklyn property and, in the following year, he offered a false application to DOB for alterations to a nonexistent second floor of a third Brooklyn parcel.

DOB initiated an administrative proceeding before the New York City Office of Administrative Trials and Hearings seeking to revoke St. Clair Nation’s professional certification privileges. The OATH Administrative Law Judge found, by a preponderance of the evidence, that St. Clair Nation had “negligently certified the accuracy of the altered photographs and submitted a deceptive application.” The ALJ recommended St. Clair Nation’s professional certification privileges be rescinded.

Accepting the ALJ’s recommendation, and relying on a recently enacted amendment to the City’s Administrative Code — Administrative Code § 26-124 (c)* — the Commissioner also precluded St. Clair Nation from filing any application or document with DOB for two years, effective January 15, 2008, to be followed by a three-year probationary period.

St. Clair Nation filed an Article 78 proceeding challenging the Commissioner's determination. He argued that [1] the determination was not supported by substantial evidence; [2] the revocation of his certification privileges was excessive; and [3] that Administrative Code §26-124(c) was inapplicable in this instance because it was enacted in 2007, after he engaged in the acts with which he had been charged.

The Appellate Division held although substantial evidence supported the Commissioner's determination as to the falsification of documents, the provisions Administrative Code §26-124(c) relied upon by the Commissioner could not be applied retroactively by the Commissioner to bar St. Clair Nation from submitting any documents to DOB for two years, together with the three-year probationary period.

DOB appealed and the Court of Appeal held that Administrative Code §26-124(c) could be applied retroactively under the circumstances. The court ruled that the Commissioner's refusal to accept documents from St. Clair Nation for a future period of time did not amount to an improper retroactive application of the provision.

Although, the Court of Appeals, citing Forti v New York State Ethics Commn., 75 NY2d 596, said that “It is well settled under New York law that retroactive operation of legislation ‘is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it’ … it is also true that ‘[a] statute is not retroactive . . . when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events.’”

Matter of Miller v DeBuono, 90 NY2d 783, was a case involving a nurse aide found to have physically abused a nursing home patient in 1991 and was thereafter terminated. The Commissioner of Health barred her from future employment in a nursing home on the authority of 10 NYCRR 415.4 (b) (1) (ii) (b), a provision that had been enacted after the underlying incident of abuse took place. The Court of Appeals concluded that in Miller’s case the regulation had not been inappropriately applied retroactively.

The court’s rationale in Miller: "where the requirements for engaging in specified professional activity are changed to govern future professional eligibility, a statute does not operate retroactively in any true sense even though its application may be triggered by an event which occurred prior to its effective date."

Further, the court noted that provision relied upon in Miller was “a safety measure designed to regulate future employment by precluding nursing homes from hiring nurse aides who had been previously found guilty of abuse.” Thus, the court concluded, the Commissioner of Health's application of the regulation was not improper merely because the nurse aide's disqualifying conduct occurred before its promulgation.

Rejecting St. Clair Nation’s argument that Administrative Code §26-124(c), as applied to him, constitutes an ex post facto law** in violation of the Federal Constitution, the Court of Appeals held that “The Commissioner therefore properly relied on Administrative Code §26-124 (c) in determining that DOB would preclude petitioner from submitting any documents for two years, with a three-year probationary period thereafter.”

Further, said the court, based on St. Clair Nation repeated certification and submission of false materials, “we further conclude that the Commissioner's determination does not shock the conscience.”

* New York City Administrative Code §26-124(c) provides, in relevant part: "In addition to any other penalty provided by law, the commissioner may refuse to accept any application or other document . . . that bears the signature of any person who has been found, after a hearing at the office of administrative trials and hearings pursuant to the department's rules, . . . to have knowingly or negligently falsified or allowed to be falsified any certificate, form, signed statement, application, [or] report." The Court of Appeals noted that the provision was adopted by the Legislature in 2007, this provision was designed to "promote public safety and prevent the waste of taxpayer dollars by eliminating the repeated filing of false information relating to the construction and repair of buildings in New York City" (Senate Memorandum in Support, Bill Jacket, L 2007, Chapter 542, at 8).”

** Ex post facto typically refers to enacting a criminal law that criminalizes conduct that was lawful when it was originally performed. In the Matter of Keith T. Bush v New York State Board of Examiners of Sex Offenders, 2010 NY Slip Op 03441, decided on April 27, 2010, the Appellate Division said that requiring Bush to register under the Sex Offender Registration Act (Correction Law Article 6-C) does not violate the ex post facto clause of the federal constitution (US Constitution Article I, §10[1]), the due process clauses of the state or federal constitutions (NY Constitution, Article I, § 6; US Constitution, Amendment XIV), or Bush's right to equal protection of the law.

The St. Clair Nation decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03471.htm

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