Petitioner, JNS HEATING SERVICE, INC., commenced this Special Proceeding, seeking preliminary and permanent injunctive relief against Respondent, New York State Department of Labor (the “Department”), directing the Department to remove Petitioner from its list of contractors debarred from submitting a bid or being awarded any public works contracts. The Department placed the Petitioner’s name on such debarment list on February 10, 2003, for a period of five years from the date of Petitioner’s conviction, as a result of its February 3rd guilty plea to a violation of Penal Law ?§175.10, Falsifying a Business Record in the First Degree, a class “E” Felony. Petitioner argues that the application of the Labor Law, ?§220-b(3)(2), mandating automatic debarment for a period of five years after conviction for certain enumerated offenses, including Penal Law?§175.10, constitutes an unconstitutional ex-post facto penalty, since the conduct that gave rise to the plea agreement occurred long before the Sate Legislature enacted the subject amendment to the Labor Law and because the District Attorney’s plea promise itself was made prior to the effective date of the subject law. In making this assertion, Petitioner claims that the penalty imposed is criminal, rather than civil in nature, since it essentially places entities, such as Petitioner, which engages in public works projects, out of business and because it clearly has a deterrent rather than remedial purpose. In addition, Petitioner alleges that the grant by the County Court Judge of a Certificate of Relief from Civil Disabilities, on June 26, 2003, effectively operates to negate automatic debarment under the provisions of Correction Law ?§702.
The Respondent Department of Labor opposes the relief sought in the Petition, in part, on the ground that there is no retroactive application of the Labor Law ?§220-b(3)(b)(2) to the Petitioner, since the law had been in effect for approximately three months when the corporation pled to the felony and was sentenced, and because the application of the statute is civil and remedial rather than criminal in nature. With regard to the Certificate of Relief from Civil Disabilities, since it was applied for and issued after the date of conviction, Respondent Department argues that it only applies to “disabilities” and not to “forfeitures” and, therefore does not negate the “forfeiture” of automatic debarment for a period of five years from the date of conviction. Correction Law ?§702.1. The Attorney General also argues that the Certificate is not properly granted to corporations as opposed to individuals.
