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Office of the City Clerk v. New York City Pedicab Owners’ Association, Inc.

OATH Index No. 328/09 (Aug. 5, 2008)

Lobbyist’s clientfiled untimelyannual report with the City Clerk and is liable for $10 per day late fee, totaling $1,020.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

OFFICE OF THE CITY CLERK

Petitioner

- against -

NEW YORK CITY PEDICAB OWNERS’ ASSOCIATION, INC.

Respondent

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REPORT AND RECOMMENDATION

KEVINCASEY, Administrative Law Judge

Petitioner, the Office of the City Clerk, brought this proceeding under chapter 2, title 3 of the New York City Administrative Code (“Lobbying Law”) and section 1, title 51 of the Rules of the City of New York ("RCNY"). Petitioner alleged that respondent, New York City Pedicab Owners’ Association, Inc., a client as defined in subsection 3-211(b) of the Lobbying Law, did not file a timely 2007 client annual report, in violation of subsection 3-217(b) of the Lobbying Law.

The City Clerk commenced this proceeding by serving respondent with a notice and petition on June 24, 2008, scheduling the hearing for July 17, 2008(ALJ Ex. 1). Respondent did not appear for the hearing. Upon respondent's failure to appear, the City Clerk submitted proof of service of the original petition and notice of the hearing by regular and certified mail at respondent’s last known address(ALJ. Ex. 1, Pet. Ex. A). This established the jurisdictional prerequisite for finding respondent in default and the hearing continued in respondent's absence.

For the reasons below, I find that respondent filed its annual report 102 days late and should be assessed late fees of $1,020.

ANALYSIS

The Lobbying Law requires filing of an annual report with the City Clerk by any individual or organizational client who retains, employs, or designates a lobbyist during a year in which that client expends, receives, or incurs more than $2,000 of lobbying compensation or expenses. Admin. Code § 3-217(a)(2). The client’s annual report must be filed with the City Clerk by January 15following the year for which the report is made. Admin. Code § 3-217(b). The deadlinefor 2007 was extended to February 15, 2008.

Petitioner alleged that respondent filed its annual report on May 27, 2008, 102 days beyond thedeadline. Under the City Clerk’s rules, respondent’s failure to answer the petition is deemed an admission of all allegations in the petition and the City Clerk is only required to submit an offer of proof establishing the factual basis for the determination. 51 RCNY § 1-06(h)(3). Here, petitioner submitted a copy of a registration filed by a firm that conducted lobbying on behalf of respondent. Peititoner also established that respondent incurred lobbying costs in excess of $2,000, which triggers the filing requirement. (Pet. Ex. A). In addition, petitioner offered a copy of respondent's Client Annual Report for 2007, showing that respondent filed the report on May 27, 2008(Pet. Ex. B). This evidence sufficiently established that respondentfiled its 2007client annual report 102 days late, in violation of subsection 3-217(b) of the Administrative Code.

FINDINGS AND CONCLUSIONS

  1. Respondent was properly served with the petition and notice of hearing.
  1. Petitioner established that respondent, a “client” as defined in section 3-211(b) of the Lobbying Law, failed to timely submit its 2007 annual report, due on February 15, 2008, and that respondent may be assessed a late fee of $10 per day for each day it failed to file after the deadline.
  1. Petitioner established that respondent filed its 2007 annual report 102 days late.

RECOMMENDATION

Under the Lobbying Law, a client who fails to file its annual report in a timely manner is subject to late filing penalties. If the missed filing was the client's first filing under the Lobbying Law, the late filing fee is $10 per day for each day of lateness. 51 RCNY § 1-03(b)(1)(iv)(A).

Here, the City Clerk acknowledged that respondent never previously registered or filed a required statement or report under the Lobbying Law. Thus, petitioner seeks a $10 per day late filing fee. The late fees are automatic and start accumulating once a client misses the February 15 filing deadline. As the City Clerk established that respondent filed its 2007 annual report onMay 27, 2008, 102 days after the filing deadline, respondent is subject to late filing fees totaling $1,020.

In addition to late filing fees, petitioner could seek a civil penalty. Admin. Code § 3-223(c). Where a client fails to file a timely annual report, petitioner is required to notify the client, by certified mail, that such a report must be filed within 14 business days of the mailing of the notice. Admin. Code § 3-223(c). Failure to file an annual report within 14 business days of the mailing of such a notice may constitute a class A misdemeanor and subject the client to a civil penalty of up to $20,000. Admin. Code § 3-223(c); 51 RCNY § 1-03(b)(1)(iii). See Office of the City Clerk v. Bayrock Group, LLC, OATH Index No. 432/08, at 5-6 (Oct. 22, 2007) (civil penalty not authorized where untimely report filed prior to mailing of notice to cure).

Petitioner does not seek a civil penalty here. I agree with that decision. Respondent received petitioner’s notice to cure on April 7, 2008. By letter, April 28, 2008, respondent acknowledged receipt of petitioner’s letter, admitted that it missed the filing deadline, and asserted that it had been unsure of filing requirements or the deadline (Resp. Ex. 1). Respondent filed its report on May 25, 2008. Under the circumstances, where a first time filer acknowledged its error and complied with the filing requirement shortly after receiving the notice to cure, it is appropriate for petitioner to forego a civil penalty. See Office of the City Clerk v. Lipsky, OATH Index No. 155/08 (Aug. 1, 2007), modified on penalty, Acting City Clerk’s Dec. (Oct. 29, 2007) (assessing late fees, but no civil penalty, where lobbyist had no prior history of violating the Lobbying Law).

Accordingly, I recommend that respondent be assessed late fees totaling $1,020.

Kevin Casey

Administrative Law Judge

August 5, 2008

SUBMITTED TO:

HÉCTOR DÍAZ

City Clerk

APPEARANCES:

ARNIE WOLSKY, ESQ.

Attorney for Petitioner

No Appearance by or for Respondent