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Office of the City Clerk v. American Stevedoring, Inc.

OATH Index No. 292/09 (July 24, 2008)

Lobbyist’s client filed untimely annual report with theCity Clerk and is liable for late fees of $10 per day, totaling$910.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

OFFICE OF THE CITY CLERK

Petitioner

- against -

AMERICAN STEVEDORING, INC.

Respondent

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REPORT AND RECOMMENDATION

KEVIN F. CASEY, 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 chapter 1, title 51 of the Rules of the City of New York (“RCNY”). Petitioner alleged that respondent, American Stevedoring, Inc., a client of a lobbyist, violated subsection 3-217(b) of the Lobbying Law by filing an untimely 2007 annual report. Respondent’s report, due on February 15, 2008, was not received by petitioner until May 16, 2008.

The Office of the City Clerk commenced this proceeding by service of a petition dated June 16, 2008. Respondent failed to submit an answer or appear for the hearing on July 17, 2008. Petitioner submitted evidence of sufficient proof of service, by regular and certified mail,at respondent’s last known address (ALJ Ex. 1). Respondent was found in default and the hearing continued in its absence.

For the reasons below, I find that respondent filed its annual report 91 days late and should be assessed late fees of $910.

ANALYSIS

A 2006 amendment to New York City’s Lobbying Law requires electronic filing of an annual report with the City Clerk by any client who retains, employs, or designates a lobbyist during a year in which that client expends, receives, or incurs more than $2,000 of combined reportable compensation or expenses for the purpose of lobbying. Admin. Code § 3-217(a)(2). The client’s annual report must be filed by January 15 following the year for which the report is made. Admin. Code § 3-217(b). The deadline for filing the 2007 report was extended to February 15, 2008.

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 alleges that respondent filed its 2007 annual report on May 16, 2008, 91 days after the extended deadline. Petitioner submitted a copy of a statement of registration filed by respondent’s lobbyist on April 9, 2007. Petitioner also submitted a copy of respondent’s annual report for 2007, filed on May 16, 2008, which shows that respondent incurred lobbying expenses in excess of the $2,000 amount that triggers the annual report filing requirement. This evidence showed that respondent, a client as defined bysubsection 3-211(b) of the Lobbying Law, filed its annual report 91 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 subsection 3-211(b) of the Lobbying Law, filed its 2007 client annual report 91 days late.

RECOMMENDATION

Under the Lobbying Law, a client who fails to file a timely annual report is subject to late filing penalties. The late filing fee for first offenders, clients who have not previously filed or registered under the Lobbying Law, is $10 per day for each late filing. 51 RCNY § 1-03(b)(1)(iv)(A). According to petitioner, respondent is a first time filer. Thus, the $10 a day fine applies. Because respondent filed its report 91 days late, the total late fine is $910.

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). A client’s 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. On April 2, 2008, petitioner sent the notice to cure, by certified mail, advising respondent that it failed to comply with the Lobbying Law. Respondent filed its report on May 16, 2008, 32 business days after petitioner sent a notice to cure. Under the circumstances, where a first time filer complied with the filing requirement shortly after receiving the notice to cure, it is reasonable 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 $910.

Kevin F. Casey

Administrative Law Judge

July 24, 2008

SUBMITTED TO:

hector diaz

City Clerk

APPEARANCES:

ARNIE WOLSKY, ESQ.

Attorney for Petitioner

No Appearance by or for Respondent