STATE OF NEW YORK
________________________________________________________________________
7537
2021-2022 Regular Sessions
IN ASSEMBLY
May 13, 2021
___________
Introduced by M. of A. D. ROSENTHAL -- read once and referred to the
Committee on Transportation
AN ACT to amend the administrative code of the city of New York, in
relation to imposing liability on owners of motor vehicles for failure
to comply with vehicle sound limits; to amend the public officers law,
in relation to access to certain agency records; and providing for the
repeal of such provisions upon the expiration thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The administrative code of the city of New York is amended
2 by adding a new section 24-236.1 to read as follows:
3 § 24-236.1 Owner liability for failure to comply with motor vehicle
4 sound limits. (a) Definitions. For the purposes of this section, the
5 following terms shall have the following meanings:
6 (1) "Decibel reader" shall refer to a measuring instrument used to
7 assess noise or sound levels by measuring sound pressure and which
8 expresses such level in the unit of a decibel (dB).
9 (2) "Lessee" shall mean any person, corporation, firm, partnership,
10 agency, association or organization that rents, bails, leases or
11 contracts for the use of one or more vehicles and has the exclusive use
12 thereof for any period of time.
13 (3) "Lessor" shall mean any person, corporation, firm, partnership,
14 agency, association or organization engaged in the business of renting
15 or leasing vehicles to any lessee or bailee under a rental agreement,
16 lease or otherwise, wherein the said lessee or bailee has the exclusive
17 use of said vehicle for any period of time.
18 (4) "Manual uniform traffic-control device" or "MUTCD" shall mean the
19 manual and specifications for a uniform system of traffic-control
20 devices maintained by the state commissioner of transportation pursuant
21 to section sixteen hundred eighty of the vehicle and traffic law.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10723-02-1
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1 (5) "Motor vehicle owner" shall mean any person, corporation, partner-
2 ship, firm, agency, association, lessor, or organization who at the time
3 of the issuance of a notice of violation:
4 (i) is the beneficial or equitable owner of such vehicle;
5 (ii) has title to such vehicle;
6 (iii) is the registrant or co-registrant of such vehicle which is
7 registered with the department of motor vehicles of this state or any
8 other state, territory, district, province, nation or other jurisdic-
9 tion;
10 (iv) uses such vehicle in its vehicle renting and/or leasing business;
11 or
12 (v) is an owner of such vehicle as defined by section one hundred
13 twenty-eight of the vehicle and traffic law.
14 Provided that "motor vehicle" shall retain the same meaning as
15 provided in subdivision thirty-eight of section 24-203 of this chapter.
16 (6) "Motor vehicle noise limits" shall refer to the noise limits
17 prescribed in section 24-236 of this subchapter.
18 (7) "Notice of violation" shall refer to the notice described in
19 section 25-259 of this code.
20 (8) "Operators of photo noise violation monitoring systems" shall mean
21 any natural or legal person authorized to set up, test, or operate the
22 noise violation monitoring system described herein by the city of New
23 York.
24 (9) "Photo noise monitoring system" shall mean a mobile or fixed vehi-
25 cle sensor installed to work in conjunction with a noise measuring
26 device such as a decibel reader which automatically produces two or more
27 photographs, two or more microphotographs, a videotape or other recorded
28 images of each vehicle at the time it is used or operated in violation
29 of the motor vehicle noise limits prescribed in section 24-236 of this
30 subchapter.
31 (b) (1) Notwithstanding any provision of law to the contrary, the city
32 is hereby authorized to establish a demonstration program of photo noise
33 violation monitoring systems to monitor compliance with motor vehicle
34 noise limits. Any vehicle found to be violating such limits shall be
35 issued a notice of violation and subject to the civil penalty prescribed
36 in table I of paragraph five of subdivision (b) of section 24-257 of
37 this chapter.
38 (2) No photo noise violation monitoring system shall be used unless
39 (i) on the day it is to be used it has successfully passed a self-test
40 of its functions; and (ii) it has undergone an annual calibration check
41 performed pursuant to paragraph four of this subdivision. The city shall
42 install signs giving notice to approaching motor vehicle operators that
43 a photo noise violation monitoring system is in use, in conformance with
44 standards established in the MUTCD.
45 (3) Operators of photo noise violation monitoring systems shall have
46 completed training in the procedures for setting up, testing, and oper-
47 ating such systems. Each such operator shall maintain a daily camera log
48 report for each such system that (i) states the date and time when, and
49 the location where, the system was set up that day; and (ii) states that
50 such operator successfully performed, and the system passed, the self-
51 tests of such system before producing a recorded image that day. The
52 city shall retain each such daily camera log report until the later of
53 the date on which the photo noise violation monitoring system to which
54 it applies has been permanently removed from use or the final resolution
55 of all cases involving notices of violation issued based on photographs,
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1 microphotographs, video or other recorded images produced by such
2 system.
3 (4) Each photo noise violation monitoring system shall undergo an
4 annual calibration check performed by an independent calibration labora-
5 tory which shall issue a signed certificate of calibration. The city
6 shall keep each such annual certificate of calibration on file until the
7 final resolution of all cases involving a notice of violation issued
8 during such year which were based on photographs, microphotographs,
9 videotape or other recorded images produced by such photo noise
10 violation monitoring system.
11 (5) It shall be a defense to any prosecution for a violation of motor
12 vehicle noise limits pursuant to this section that such photo noise
13 violation monitoring system was malfunctioning at the time of the
14 alleged violation.
15 (6) (i) Such demonstration program shall utilize necessary technolo-
16 gies to ensure, to the extent practicable, that photographs, microphoto-
17 graphs, videotape or other recorded images produced by such photo noise
18 violation monitoring systems shall not include images that identify the
19 driver, the passengers, or the contents of the vehicle. Provided, howev-
20 er, that no notice of violation issued pursuant to this section shall be
21 dismissed solely because such a photograph, microphotograph, videotape
22 or other recorded image allows for the identification of the driver, the
23 passengers, or the contents of vehicles where the city shows that it
24 made reasonable efforts to comply with the provisions of this subpara-
25 graph in such case.
26 (ii) Photographs, microphotographs, videotape or any other recorded
27 image from a photo noise violation monitoring system shall be for the
28 exclusive use of the city for the purpose of the adjudication of liabil-
29 ity imposed pursuant to section 24-257 of this chapter and of the motor
30 vehicle owner receiving a notice of violation, and shall be destroyed by
31 the city upon the final resolution of the notice of violation to which
32 such photographs, microphotographs, videotape or other recorded images
33 relate, or one year following the date of issuance of such notice of
34 violation, whichever is later. Notwithstanding the provisions of any
35 other law, rule or regulation to the contrary, photographs, microphoto-
36 graphs, videotape or any other recorded image from a photo noise
37 violation monitoring system shall not be available to the public, nor
38 subject to civil or criminal process or discovery, nor used by any court
39 or administrative or adjudicatory body in any action or proceeding ther-
40 ein except that which is necessary for the adjudication of a notice of
41 violation, and no public entity or employee, officer or agent thereof
42 shall disclose such information, except that such photographs, micropho-
43 tographs, videotape or any other recorded images from such systems:
44 (A) shall be available for inspection and copying and use by the motor
45 vehicle owner and operator for so long as such photographs, microphoto-
46 graphs, videotape or other recorded images are required to be maintained
47 or are maintained by such public entity, employee, officer or agent; and
48 (B) (1) shall be furnished when described in a search warrant issued
49 by a court authorized to issue such a search warrant pursuant to article
50 six hundred ninety of the criminal procedure law or a federal court
51 authorized to issue such a search warrant under federal law, where such
52 search warrant states that there is reasonable cause to believe such
53 information constitutes evidence of, or tends to demonstrate that, a
54 misdemeanor or felony offense was committed in this state or another
55 state, or that a particular person participated in the commission of a
56 misdemeanor or felony offense in this state or another state, provided,
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1 however, that if such offense was against the laws of another state, the
2 court shall only issue a warrant if the conduct comprising such offense
3 would, if occurring in this state, constitute a misdemeanor or felony
4 against the laws of this state;
5 (2) shall be furnished in response to a subpoena duces tecum signed by
6 a judge of competent jurisdiction and issued pursuant to article six
7 hundred ten of the criminal procedure law or a judge or magistrate of a
8 federal court authorized to issue such a subpoena duces tecum under
9 federal law, where the judge finds and the subpoena states that there is
10 reasonable cause to believe such information is relevant and material to
11 the prosecution, or the defense, or the investigation by an authorized
12 law enforcement official, of the alleged commission of a misdemeanor or
13 felony in this state or another state, provided, however, that if such
14 offense was against the laws of another state, such judge or magistrate
15 shall only issue such subpoena if the conduct comprising such offense
16 would, if occurring in this state, constitute a misdemeanor or felony in
17 this state; and
18 (3) may, if lawfully obtained pursuant to this clause and clause (A)
19 of this subparagraph and otherwise admissible, be used in such criminal
20 action or proceeding.
21 (7) A certificate, sworn to or affirmed by a technician employed by
22 the city of New York, or a facsimile thereof, based upon inspection of
23 photographs, microphotographs, videotape or other recorded images
24 produced by a photo noise violation monitoring system, shall be prima
25 facie evidence of the facts contained therein. Any photographs, micro-
26 photographs, videotape or other recorded images evidencing such a
27 violation shall include at least two date and time stamped images of the
28 rear of the motor vehicle that include the same stationary object near
29 the motor vehicle and shall be available for inspection reasonably in
30 advance of and at any proceeding to adjudicate the liability for such
31 violation pursuant to subchapter eight of this chapter.
32 (8) A notice of violation shall be sent by first class mail to each
33 person alleged to be liable as a motor vehicle owner for a violation of
34 motor vehicle noise limits, within fourteen business days if such owner
35 is a resident of this state and within forty-five business days if such
36 owner is a non-resident. Personal delivery on the owner shall not be
37 required. A manual or automatic record of mailing prepared in the ordi-
38 nary course of business shall be prima facie evidence of the facts
39 contained therein.
40 (9) A notice of violation shall contain the name and address of the
41 person alleged to be liable as a motor vehicle owner for a violation of
42 motor vehicle noise limits, as documented by a photo noise violation
43 monitoring system, the registration number of the vehicle involved in
44 such violation, the location where such violation took place, the date
45 and time of such violation, the identification number of the camera
46 which recorded the violation or other document locator number, at least
47 two date and time stamped images of the rear of the motor vehicle that
48 include the same stationary object near the motor vehicle, and the
49 certificate charging the violation, which shall be a statement within
50 the notice of violation that an owner violated motor vehicle noise
51 limits pursuant to this section and is liable for penalties in accord-
52 ance with this section.
53 (10) The notice of violation shall contain information advising the
54 person charged of the manner and the time in which he or she may contest
55 the liability alleged in the notice in a hearing pursuant to section
56 24-263 of this chapter.
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1 (11) If a motor vehicle owner receives a notice of violation pursuant
2 to this section for any time period during which the vehicle or the
3 number plate or plates of such vehicle was reported to the police
4 department as having been stolen, it shall be a valid defense to an
5 allegation of liability for a violation of motor vehicle noise limits
6 that the vehicle or the number plate or plates of such vehicle had been
7 reported to the police as stolen prior to the time the violation
8 occurred and had not been recovered by such time. For purposes of
9 asserting the defense provided by this paragraph, it shall be sufficient
10 that a certified copy of the police report on the stolen vehicle or
11 number plate or plates of such vehicle be sent by first class mail to
12 the environmental control board of the city of New York.
13 (12) A motor vehicle owner who is a lessor of a vehicle to which a
14 notice of violation is issued shall not be liable for the violation of
15 motor vehicle noise limits, provided that:
16 (i) prior to the violation, the lessor has filed with the environ-
17 mental control board of the city of New York in accordance with the
18 provisions of section two hundred thirty-nine of the vehicle and traffic
19 law; and
20 (ii) within thirty-seven days after receiving notice from such board
21 of the date and time of the violation, together with the other informa-
22 tion contained in the notice of violation, the lessor submits to such
23 board the correct name and address of the lessee of the vehicle identi-
24 fied in the notice of violation at the time of such violation, together
25 with such additional information contained in the rental, lease, or
26 other contract document, as may be reasonably required by such board
27 pursuant to regulations promulgated for such purpose.
28 (13) Failure to comply with the provisions of paragraph twelve of this
29 subdivision shall render the motor vehicle owner liable for the penalty
30 prescribed in table I of paragraph five of subdivision (b) of section
31 24-257 of this chapter.
32 (14) Where the lessor complies with the provisions of paragraph twelve
33 of this subdivision, the lessee of such vehicle on the date of such
34 violation shall be deemed to be the owner of such vehicle for purposes
35 of this section, shall be subject to liability for such violation pursu-
36 ant to this section and shall be sent a notice of violation pursuant to
37 paragraph eight of this section.
38 (15) If the motor vehicle owner liable for a violation of motor vehi-
39 cle noise limits pursuant to this section was not the operator of the
40 vehicle at the time of the violation, the owner may maintain an action
41 for indemnification against the operator.
42 (16) Notwithstanding any other provision of this section, no owner of
43 a vehicle shall be subject to a monetary fine imposed pursuant to table
44 I of paragraph five of subdivision (b) of section 24-257 of this chapter
45 if the operator of such vehicle was operating such vehicle without the
46 consent of the owner at the time of the violation. For purposes of this
47 paragraph there shall be a presumption that the operator of such vehicle
48 was operating such vehicle with the consent of the owner at the time of
49 such violation.
50 (c) If the city adopts a demonstration program pursuant to subdivision
51 (b) of this section it shall conduct a study and submit an annual report
52 on the results of the use of photo devices to the governor, the tempo-
53 rary president of the senate and the speaker of the assembly on or
54 before June first of the year in which this section is enacted and on
55 the same date in each succeeding year in which the demonstration program
56 is operable. Such report shall include:
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1 (1) the locations where and dates when photo noise violation monitor-
2 ing systems were used;
3 (2) the number of violations recorded within the city, in the aggre-
4 gate on a daily, weekly and monthly basis;
5 (3) the total number of notices of violation issued for violations
6 recorded by such systems;
7 (4) the number of fines and total amount of fines paid after the first
8 notice of violation issued for violations recorded by such systems;
9 (5) the number of violations adjudicated in accordance with subchapter
10 eight of this chapter and the results of such adjudications including
11 breakdowns of dispositions made for violations recorded by such systems;
12 (6) the total amount of revenue realized by the city in connection
13 with the program;
14 (7) the expenses incurred by the city in connection with the program;
15 and
16 (8) the quality of the adjudication process and its results.
17 § 2. Subdivision 2 of section 87 of the public officers law is amended
18 by adding a new paragraph (r) to read as follows:
19 (r) are photographs, microphotographs, videotape or other recorded
20 images prepared under the authority of section 24-236.1 of the adminis-
21 trative code of the city of New York.
22 § 3. The purchase or lease of equipment for a demonstration program
23 pursuant to section 24-236.1 of the administrative code of the city of
24 New York shall be subject to the provisions of section 103 of the gener-
25 al municipal law.
26 § 4. This act shall take effect on the sixtieth day after it shall
27 have become a law and shall expire 3 years after such effective date
28 when upon such date the provisions of this act shall be deemed repealed.
29 Effective immediately, any rules necessary for the implementation of
30 this act on its effective date are authorized to be promulgated on or
31 before such effective date.