The New York State Professional Process Servers Association held their 2014 Convention from October 10th-12th in Tarrytown, NY. The convention focused largely on the issues surrounding the DCA and regulations, with attorneys Tracy Harkins and Myra Sencer speaking on the topic.
Over the next two weeks we’ll provide a recap of these presentations and go into detail about what has been occurring in New York City and what process servers can expect to see in the future, as well as the plans NYSPPSA has moving forward.
To start, let’s take a look at what Tracy Harkins had to say about the federal lawsuit that was filed against the DCA, what the primary complaints are and how it is hoped the DCA will change. Tracy is the attorney who has filed the federal lawsuit and has seen first-hand what has been happening to the process service industry in New York.
The Lawsuit
Tracy broke down the three primary complaints contained in the federal lawsuit.
- The DCA does not have the authority for what they are doing.
For all other types of licensure, it is specifically stated in the code that the DCA has the authority to collect fine in addition to the authority to prosecute. The process server code however does not contain that language, indicating the DCA is outside of their bounds in collecting fines.
Additionally, most every other profession and industry under the DCA has the opportunity to cure, or fix, issues prior to receiving a violation. For example, the DCA may say “You have 30 days to come back and show us a correct logbook or else be fine $500 for each occurrence”. Yet none of the rules currently allow this. Even when Local Law 35 was passed in 2013 requiring the DCA to review their rules and codes to provide more opportunities for local businesses to cure rather than automatically pay fines, nothing was changed for process servers.
- RICOH Statute
The suit claims the DCA is committing fraud, in particular extortion and wire fraud. Using threats to get process servers to pay fines or lose their license, this violates several laws. Two judges have also filed suit against the DCA, claiming DCA officials were forcing them to require maximum fines and to make DCA favorable decisions or face adverse employment penalties such as demotion or reassignment to an undesirable area.
- Consent Orders
According the Tracy, the DCA is also out of bounds in requiring consent orders. These permit multiple fines for the same offense and carries serious ramifications for process servers. If they violate the law after signing the consent order, they can then get charged twice for the same violation: once for violating the law and another for violating the consent order, which Tracy calls double jeopardy.
Some examples of the requirements found in recent DCA consent orders include:
- Notifying the DCA with written notice of when they will be conducting their mandatory training
- Written record of any disciplinary action against process servers (even independent contractors) , including any irregularities in GPS
- Updating the DCA of any new process servers who serve for you
We’ll be posting shortly about what Myra Sencer had to say and what to expect in the upcoming year for NYSPPSA and New York process servers.
