Can a New York town set up its own administrative tribunal or hire a hearing officer to handle building code violations?

Plain-English summary

The Town of Hamburg's deputy town attorney asked three questions: could the town set up an administrative tribunal to hear building code violations and impose penalties, could it instead hire a hearing officer to help the town justice handle these cases, and, if either was permitted, did the town need to act by ordinance or could it act by resolution.

The AG answered no to the first two and did not reach the third.

The first analytical step was classification. Town Law § 135 declares that violations of a town building code are deemed misdemeanors for jurisdictional purposes. Misdemeanors and other offenses fall within the trial jurisdiction of local criminal courts under Criminal Procedure Law § 10.10 and § 10.30. The Town of Hamburg's local law imposed fines for building code violations, which made them "offenses" under Penal Law § 10.00. Appearance tickets for Uniform Code violations are returnable in the local criminal court under Criminal Procedure Law § 150.40 and Executive Law § 382(1).

The second step was the home rule constraint. N.Y. Const., art. IX, § 3(a)(2) carves the courts out of the home rule grant. Municipal Home Rule Law § 11(1)(e) makes the carve-out concrete: a local law cannot supersede a state statute if it "applies to or affects the courts as required or provided by article six of the constitution." Setting up an administrative tribunal to decide what the Criminal Procedure Law commits to local criminal courts would do exactly that.

The AG cited a long line of prior opinions reaching the same conclusion for different code subjects: parking violations involving boats, county electrical code violations, town litter laws, and county traffic infractions. The Legislature does sometimes authorize administrative adjudication of specific code categories. General Municipal Law Article 14-BB lets cities of a certain size (between 300,000 and 350,000 in population, which targeted Buffalo) adopt administrative procedures for housing and similar code violations. Vehicle and Traffic Law Article 2-A creates hearing officers for traffic infractions in named jurisdictions. None applied to Hamburg, which had fewer than 57,000 residents.

The hearing-officer alternative failed for the same reason. Under the Criminal Procedure Law, judicial hearing officers (JHOs) have a defined and limited role: they hear and report on pretrial motions under § 255.20(4), and they can try bench trials of class B and unclassified misdemeanors with party consent under § 350.20. They must be designated under Article 22 of the Judiciary Law, and the Chief Administrator of the Courts assigns them from a statewide panel. Hamburg's proposed officer would have been selected and employed by the town, would have heard whatever the town chose to send, and would have operated outside Article 22 entirely. That is not a JHO. It is the town reaching into court operations, which Municipal Home Rule Law § 11(1)(e) forbids.

Because the answers to the first two questions were no, the AG did not reach the ordinance-versus-resolution question.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why couldn't the town just create its own building code court?
A: Because the home rule article of the State Constitution and Municipal Home Rule Law § 11(1)(e) bar a local law that supersedes state statutes about court jurisdiction. The Criminal Procedure Law puts misdemeanor and violation jurisdiction in the local criminal courts; a town tribunal trying the same cases would supersede that allocation.

Q: Are building code violations criminal in New York?
A: Town Law § 135 treats them as misdemeanors for the purpose of conferring jurisdiction on the courts. The Town of Hamburg's local law imposed fines, which makes the violations "offenses" under Penal Law § 10.00.

Q: When can a municipality use administrative adjudication for code violations?
A: When the Legislature has expressly authorized it. The AG pointed to General Municipal Law Article 14-BB (housing-code adjudication for cities of 300,000-350,000, which was Buffalo) and to Vehicle and Traffic Law Article 2-A (traffic hearing officers in named jurisdictions). Absent that kind of express statutory authorization, the local criminal court has the case.

Q: Could the town hire a "hearing officer" to help the town justice manage code cases?
A: Not under the proposal Hamburg described. Judicial hearing officers are state employees designated under Article 22 of the Judiciary Law and assigned by the Chief Administrator. A town-selected and town-employed officer hearing whatever the town routed to him would not fit that structure, and the Criminal Procedure Law does not authorize alternatives.

Q: What about appearance tickets? Can a town building inspector still issue them?
A: Yes. Building inspectors and other authorized officials can issue appearance tickets for Uniform Code offenses under Criminal Procedure Law § 150.20. The tickets are returnable in the local criminal court under § 150.40 and Executive Law § 382(1).

Background and statutory framework

The architecture of the home rule article matters here. N.Y. Const., art. IX, § 3(a)(2) preserves the Legislature's authority over the courts. Municipal Home Rule Law § 11(1)(e) carries that limitation into the statute: a local law that "applies to or affects the courts" cannot supersede state law on the subject. The result is that towns and other municipalities cannot remake court jurisdiction by local enactment.

That principle has been applied repeatedly to attempts to set up administrative adjudication of state-law offenses. Op. Att'y Gen. (Inf.) No. 2000-21 said a village could not create an administrative bureau for boat parking violations. Op. Att'y Gen. (Inf.) No. 97-43 and No. 93-7 said the same for county electrical code violations. Op. Att'y Gen. (Inf.) No. 82-57 said the same for a town litter ordinance.

The Legislature has carved out limited exceptions. General Municipal Law Article 14-BB authorizes administrative adjudication of certain code violations for municipalities of a tightly defined population band, originally designed for Buffalo's housing code program. Vehicle and Traffic Law Article 2-A creates hearing officer programs for traffic infractions in identified jurisdictions. None covers the Town of Hamburg's situation.

On the hearing-officer question, the Court of Appeals in People v. Scalza laid out the limited statutory role of judicial hearing officers in criminal matters. They hear and report on pretrial motions under Criminal Procedure Law § 255.20(4), and with party consent they may try issues of fact and preside at bench trials of class B and unclassified misdemeanors under § 350.20. They must be designated under Judiciary Law Article 22 and assigned per 22 N.Y.C.R.R. Part 122. The town's proposal exceeded both the substantive scope of the hearing-officer function and the designation procedure.

Citations and references

Constitution:

• N.Y. Const., art. IX, § 3(a)(2) (home rule does not reach the courts)

Statutes:

• Criminal Procedure Law § 1.10 (CPL governs criminal procedure)
• Criminal Procedure Law § 1.20(43) (definition of judicial hearing officer)
• Criminal Procedure Law § 10.10 (jurisdiction of criminal courts)
• Criminal Procedure Law § 10.30 (jurisdiction of local criminal courts)
• Criminal Procedure Law § 150.20, § 150.40 (appearance tickets)
• Criminal Procedure Law § 255.20(4) (JHO hearing and reporting)
• Criminal Procedure Law § 350.20 (JHO bench trials of class B/unclassified misdemeanors)
• Executive Law § 382(1) (Uniform Code prosecution)
• General Municipal Law Article 14-BB (administrative adjudication for certain cities)
• Judiciary Law § 851, § 852 (JHO designation)
• Municipal Home Rule Law § 11(1)(e) (no supersession affecting courts)
• Penal Law § 10.00 (offense definitions)
• Town Law § 135 (building code violations deemed misdemeanors)
• Vehicle and Traffic Law § 1690 (Nassau County traffic hearing officers)

Regulations:

• 22 N.Y.C.R.R. Part 122 (JHO assignment rules)

Cases:

• People v. Scalza, 76 N.Y.2d 604 (1990)

Prior AG and Comptroller opinions:

• Op. Att'y Gen. (Inf.) No. 91-3
• Op. Att'y Gen. (Inf.) No. 95-53
• Op. Att'y Gen. (Inf.) No. 88-44
• Op. Att'y Gen. (Inf.) No. 2000-21
• Op. Att'y Gen. (Inf.) No. 97-43
• Op. Att'y Gen. (Inf.) No. 93-7
• Op. Att'y Gen. (Inf.) No. 82-57
• 1980 Op. Att'y Gen. (Inf.) 243
• Op. State Compt. No. 82-5 (1982)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2003-18_pw.pdf

Original opinion text

N.Y. CONST., ART. IX, § 3(a)(2); CRIMINAL PROCEDURE LAW §§ 1.10, 1.20(43), 10.10, 10.30, 150.20, 150.40, 255.20(4), 350.20; EXECUTIVE LAW § 382(1); GENERAL MUNICIPAL LAW ART. 14-BB; JUDICIARY LAW, ART 22, §§ 851, 852; MUNICIPAL HOME RULE LAW § 11(1)(e); PENAL LAW § 10.00; TOWN LAW § 135; VEHICLE AND TRAFFIC LAW, ART. 2-A, § 1690; L. 1995, CH. 382; 22 N.Y.C.R.R. Part 122.

Absent authorization by state statute, a town may not create an administrative tribunal or a hearing officer position to assist in the adjudication of building code violations.

December 23, 2003

Richard G. Boehm, Esq.
Deputy Town Attorney
Town of Hamburg
S-6100 South Park Avenue
Hamburg, New York 14075

Informal Opinion
No. 2003-18

Dear Mr. Boehm:

You have asked whether the town may contract with a person to serve as a hearing officer to adjudicate town building code violations. In a subsequent telephone conversation, you clarified that you are interested in the following three issues: (1) whether the town may establish an administrative tribunal to adjudicate town building code violations; (2) alternatively, whether the town may hire someone to serve as a hearing officer in town court to hear and report the facts to a town justice in proceedings involving alleged building code violations; and (3) in the event the town has authority to do either of the foregoing, whether either may be accomplished by resolution, or whether an ordinance is required.

Analysis

I. Administrative Tribunal

Your first inquiry asks whether the town may establish an administrative tribunal to determine if individuals have violated the town building code, and, if the tribunal finds those individuals guilty, to impose penalties. The contemplated tribunal would thus possess judicial powers normally performed by a court. We are of the opinion that this proposal is impermissible.

As a threshold matter, State law, specifically the Criminal Procedure Law ("C.P.L."), provides that local criminal courts, such as the town court, see C.P.L. § 10.10(3)(d), have trial jurisdiction over all offenses, except for felonies. See C.P.L. § 10.30(1). They have, with one exception, exclusive trial jurisdiction of petty offenses, which include violations, and concurrent jurisdiction with superior courts, such as the Supreme Court or County Court, see C.P.L. § 10.10(2), over misdemeanors. C.P.L. § 10.30(1)(a) and (b).

We note that violations of a town's building code are classified as offenses under Town Law § 135, and, as we understand, under the Town of Hamburg's local law as well, which imposes a fine for violations of the town's building code. See Code of Town of Hamburg, § 76-14(C). Town Law § 135 provides that for purposes of conferring jurisdiction upon the courts, "violations of a town building code . . . shall be deemed misdemeanors." Thus, the town court has trial jurisdiction over violations of the town's building code.

We also understand that the town's building code provides for enforcement of the New York State Uniform Fire Prevention and Building Code (the "Uniform Code"), see Code of the Town of Hamburg, § 76-1, and authorizes the town's building inspector and certain other officials to issue appearance tickets for such offenses pursuant to C.P.L. § 150.20. See Code of Town of Hamburg, § 3-1. Pursuant to State law, jurisdiction over such appearance tickets lies in the local criminal courts. See C.P.L. § 150.40; Executive Law § 382(1); see generally Op. Att'y Gen. (Inf.) No. 95-53 (C.P.L. governs adjudication of offenses under Uniform Code); Op. Att'y Gen. (Inf.) No. 88-44 (appearance tickets for violations of Uniform Code are returnable in local criminal courts, including the town court).

Both the constitutional article conferring home rule power on municipalities and the statute implementing this power limit the town's ability to adopt a law that affects the courts. The Constitution provides that, "[e]xcept as expressly provided, nothing in [Article IX, granting home rule to municipalities] shall restrict or impair any power of the [State] legislature in relation to . . . [t]he courts." N.Y. Const. Art. IX, § 3(a)(2). The statute implementing this provision states that, "[n]otwithstanding any provision of this chapter, the [local] legislative body shall not be deemed authorized by this chapter to adopt a local law which supersedes a state statute, if such local law . . . [a]pplies to or affects the courts as required or provided by article six of the constitution." Municipal Home Rule Law § 11(1)(e).

In view of these restrictions, we are of the opinion that the town may not establish an administrative tribunal to adjudicate town building code violations because to do so would supersede State statutes conferring jurisdiction over such matters to the courts and governing criminal procedure in the courts. This conclusion is consistent with numerous previous opinions of this office. See, e.g., Op. Att'y Gen. (Inf.) No. 2000-21 (village may not create an administrative bureau to adjudicate parking violations relating to boats which "must be prosecuted in the local criminal court"); Op. Att'y Gen. (Inf.) No. 97-43 (county may not adjudicate violations of county's electrical code by administrative tribunal); Op. Att'y Gen. (Inf.) No. 93-7 (same); Op. Att'y Gen. (Inf.) No. 82-57 (town may not determine violations of local litter law by administrative hearing); 1980 Op. Att'y Gen. (Inf.) 243 (county may not establish administrative tribunal to dispose of traffic infractions); see also Op. State Compt. No. 82-5 (1982) (municipality is without authority to establish building code enforcement board).

We note that the Legislature has authorized administrative procedures for the adjudication of certain types of offenses. See, e.g., Article 14-BB of the General Municipal Law (permitting a municipality with a population of more than 300,000 and less than 350,000 to establish administrative hearing procedures for certain code violations constituting a danger to public health, safety and welfare); see also Vehicle and Traffic Law Article 2-A (authorizing hearing officers to adjudicate traffic infractions in certain jurisdictions). We are not, however, aware of any State legislation authorizing the Town of Hamburg to establish an administrative tribunal to adjudicate building code violations.

We therefore conclude that in the absence of a State statute authorizing the town to establish an administrative tribunal for the adjudication of town building code violations, the town may not establish such a tribunal.

II. Hearing Officer

Your second question asks whether the town may enact legislation creating a hearing officer position for the town court to deal with criminal cases brought against persons charged with violating the town building code. As you have explained, the proposed building code hearing officer would be authorized to hear and report to a town justice regarding the facts of pending criminal actions in town court involving building code offenses.

In our opinion, the town may not enact the proposed legislation because it conflicts with C.P.L. provisions authorizing utilization of judicial hearing officers in the criminal courts. See C.P.L. §§ 255.20(4), 350.20. As noted supra, the town may not enact legislation that conflicts with or supersedes State legislation pertaining to the courts. See N.Y. Const. art. IX, § 3(a)(2); Municipal Home Rule Law § 11(1)(e); see also Op. Att'y Gen. (Inf.) No. 91-3 (C.P.L. provisions granting jurisdiction over offenses and governing criminal procedure in the courts may not be superseded by local law).

Under the C.P.L., which provides the governing body of law for criminal actions and proceedings and matters of criminal procedure (see C.P.L. § 1.10), the role of judicial hearing officers ("JHOs") is statutorily limited: "In criminal matters, JHOs are authorized to hear and report on pretrial motions," and "may also, with the parties' consent, try issues of fact and preside at bench trials of class B and unclassified misdemeanors (C.P.L. § 350.20)." People v. Scalza, 76 N.Y.2d 604, 608 (1990). In addition, the only judicial hearing officers authorized to assist in matters under the C.P.L. are those who are so designated pursuant to Article 22 of the Judiciary Law. See C.P.L. § 1.20(43).

The town's proposed legislation does not conform to these requirements. For example, it would expand the "hear and report" function for pretrial motions authorized by section 255.20(4) to permit a hearing officer to hear and report as to all issues of fact in criminal actions involving offenses under the town building code. Furthermore, the town's proposed hearing officer would not be one designated pursuant to Judiciary Law, Article 22.

That statute establishes a statewide, integrated plan under which retired judges who meet certain requirements may be designated as JHOs by the Chief Administrator of the Courts "to expedite the disposition of cases in civil matters and in some criminal case aspects." Scalza, 76 N.Y.2d at 608. JHOs are State employees who are assigned to a particular part of a court or to pending matters from panels established by the Chief Administrator. Judiciary Law §§ 851, 852. Assignments must be "in conformance with law and such rules as the chief administrator may promulgate." Judiciary Law § 851; see generally 22 N.Y.C.R.R. Part 122.

In contrast, under the town's proposal, the contemplated hearing officer would be an individual selected and employed by the town to serve in town court, who would hear matters selected by the town, and, perhaps most fundamentally, would not be subject to Article 22's requirements and procedures. Clearly, the town's scheme does not fall within the scope of the program authorized by Article 22, and we are unaware of any State law permitting the proposed different procedures in this context.

In short, we have not identified any State statute specifically conferring upon the town the authority to establish the proposed Building Code Hearing Officer position for the town court. We therefore conclude that the town may not enact local legislation establishing that position.

In view of our conclusions on your first and second questions, we do not consider your third question.

The Attorney General issues formal opinions only to officers and departments of State government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions

By: ______
ANN P. ZYBERT
Assistant Solicitor General