N.Y. Comp. Codes R. & Regs. tit. 8 § 31.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 31.4 - Civil penalties and restitution

(a) Civil penalties. Whenever the department concludes that civil penalties may be warranted, it may seek to impose a civil penalty of up to $5,000 for each violation.

(1) Factors to be considered in determining whether to impose a civil penalty may include, but need not be limited to:

(i) the nature of the violation and of any injury resulting therefrom;

(ii) the degree of danger to the public caused by the unauthorized conduct;

(iii) whether the unauthorized conduct was inadvertent, or was committed with knowledge that the conduct was unauthorized;

(iv) the duration and frequency of the unauthorized conduct;

(v) any past history or findings of unauthorized practice by the respondent; and

(vi) respondent's failure to comply with any cease and desist order previously issued.

(2) In the event that respondent violates a cease and desist order during the course of a hearing or appeal, the department may deem such violation to constitute sufficient cause upon which to seek a civil penalty under this section.

(b) Restitution. Respondent may be ordered to make restitution to any person who has an interest in any money or property, either real or personal, acquired by the respondent as a result of the unauthorized practice of a profession or the unauthorized use of a professional title.

(1) Factors the department may consider in determining whether to order restitution include, but need not be limited to:

(i) the nature of the violation and of any injury resulting therefrom;

(ii) the degree of danger to the public caused by the unauthorized conduct;

(iii) whether the unauthorized conduct was inadvertent or was committed with knowledge that the conduct was unauthorized;

(iv) the duration and frequency of the unauthorized conduct;

(v) any past history or findings of unauthorized practice by respondent;

(vi) respondent's failure to comply with any cease and desist order previously issued; and

(vii) whether the loss suffered by the claimant is sufficiently identifiable and quantifiable to enable an order of restitution to be made.

(2) Claim for restitution. Any person who seeks to make a claim for restitution based upon respondent's unauthorized practice or unauthorized use of a professional title shall submit a written claim for restitution to the department, on a form prescribed by the commissioner. The claim for restitution shall describe, with particularity, the circumstances of the alleged unauthorized practice and/or unauthorized use of a professional title, and shall describe the specific money or property, either real or personal, acquired by the respondent for which the claimant seeks restitution.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 31.4