Rpld Title 19 Chap 2, add Title 7 Chap 10 SS7-1001 - 7-1009, amd SS19-171.1, 19-176, 10-117.3, 18-108.1,
22-220, 22-262.1, 24-146.2 & 24-346, NYC Ad Cd
Establishes a violations hearing board to conduct hearings of parking and environmental control board violations; amends certain provisions related to parking or environmental control board violations; repeals provisions relating to the parking violations bureau.
STATE OF NEW YORK
________________________________________________________________________
4083
2013-2014 Regular Sessions
IN ASSEMBLY
January 30, 2013
___________
Introduced by M. of A. MAISEL, STEVENSON, ROBINSON -- 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 establishing a violations hearing board to conduct hear-
ings of parking and environmental control board violations; and to
repeal chapter 2 of title 19 of the administrative code of the city of
New York relating to the parking violations bureau
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Chapter 2 of title 19 of the administrative code of the
2 city of New York is REPEALED.
3 § 2. Title 7 of the administrative code of the city of New York is
4 amended by adding a new chapter 10 to read as follows:
5 CHAPTER 10
6 VIOLATIONS HEARING BOARD
7 § 7-1001 Definitions. Whenever used in this chapter, the following
8 terms shall have the following meanings:
9 a. "Commissioner" means the commissioner of finance.
10 b. "Department" means the department of finance.
11 § 7-1002 Violations hearing board created. There is hereby created in
12 the department a violations hearing board which shall have the jurisdic-
13 tion of parking and environmental control board violations. For the
14 purpose of this chapter, a parking violation is the violation of any
15 local law, rule or regulation provided for or regulating the parking,
16 stopping or standing of a motor vehicle. For the purpose of this chap-
17 ter, an environmental control board violation is the violation of any
18 local law, rule or regulation which the environmental control board is
19 authorized to enforce under subdivision c of section one thousand
20 forty-nine-a of the charter of the city of New York.
21 § 7-1003 Personnel of the bureau. a. The head of such bureau shall be
22 the director, who shall be appointed by the commissioner. The director
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07764-01-3
A. 4083 2
1 may delegate any of the powers and duties conferred upon him or her by
2 this chapter.
3 b. The director may appoint a deputy director and may employ such
4 officers and employees as may be required to perform the work of the
5 bureau, within the amounts available therefor by appropriation.
6 c. The director shall appoint senior hearing examiners, not to exceed
7 ten in number. The duties of each senior hearing examiner shall include,
8 but not be limited to: (1) presiding at hearings for the adjudication of
9 charges of parking or environmental control board violations; (2) the
10 supervision and administration of the work of the bureau; and (3)
11 membership on the appeals board of the bureau, as herein provided.
12 d. The director shall appoint hearing examiners who shall preside at
13 hearings for the adjudication of charges of parking or environmental
14 control board violations. The director may also designate non-compensat-
15 ed hearing examiners as he or she may deem necessary.
16 § 7-1004 Functions, powers and duties of the violations hearing board.
17 The violations hearing board shall have the following functions, powers
18 and duties:
19 a. To accept pleas to, and to hear and determine, charges of parking
20 or environmental control board violations;
21 b. To provide for penalties other than imprisonment for parking or
22 environmental control board violations;
23 c. To adopt rules and regulations not inconsistent with any applicable
24 provision of law to carry out the purposes of this chapter, including
25 but not limited to rules and regulations prescribing the internal proce-
26 dures and organization of the bureau, the manner and time of entering
27 pleas, the conduct of hearings, and the amount and manner of payment of
28 penalties;
29 d. To issue subpoenas to compel the attendance of persons to give
30 testimony at hearings and to compel the production of relevant books,
31 papers and other things;
32 e. To enter judgments and enforce them, without court proceedings, in
33 the same manner as the enforcement of money judgments in civil actions;
34 f. To compile and maintain complete and accurate records relating to
35 all charges and dispositions;
36 g. To remit to the commissioner, on or before the fifteenth day of
37 each month, all monetary penalties or fees received by the bureau during
38 the prior calendar month, along with a statement thereof, and, at the
39 same time, to file a duplicate copy of such statement with the comp-
40 troller;
41 h. To prepare and issue a notice of violation in blank to members of
42 the police department, the fire department, the department of transpor-
43 tation and to other officers as the bureau by regulation shall deter-
44 mine. The notice of violation, when filled in and sworn to or affirmed
45 by such designated officers, and served as provided in this chapter,
46 shall constitute notice of the parking violation charged.
47 § 7-1005 Notice of violation. The notice of violation shall contain
48 information advising the person charged of the manner and the time in
49 which he or she may plead either guilty or not guilty to the charge
50 alleged in the notice. Such notice of violation shall also contain a
51 warning to advise the person charged that failure to plead in the manner
52 and time provided shall be deemed, for all purposes, an admission of
53 liability and that a default judgment may be rendered. The form and
54 wording of the notice of violation shall be prescribed by the director.
55 A copy of each notice of violation served shall be filed and retained by
56 the bureau, and shall be deemed a record kept in the ordinary course of
A. 4083 3
1 business, and shall be prima facie evidence of the facts contained ther-
2 ein.
3 § 7-1006 Hearings. a. Whenever a person charged with a parking or
4 environmental control board violation enters a plea of not guilty, the
5 bureau shall advise such person personally or by registered or certified
6 mail, return receipt requested, of the date on which he or she must
7 appear to answer the charge at a hearing. The form and content of such
8 notice of hearing shall be prescribed by the director, and shall contain
9 a warning to advise the person so pleading that failure to appear on the
10 date designated, or on any subsequent adjourned date, shall be deemed,
11 for all purposes, an admission of liability, and that a default judgment
12 may be rendered.
13 b. (1) Every hearing for the adjudication of a charge of parking or
14 environmental control board violation shall be held before a senior
15 hearing examiner or a hearing examiner in accordance with rules and
16 regulations promulgated by the bureau.
17 (2) No charge may be established except upon proof by a preponderance
18 of the evidence.
19 (3) The hearing officer shall not be bound by the rules of evidence in
20 the conduct of the hearing, except rules relating to privileged communi-
21 cations.
22 (4) The hearing officer may, in his or her discretion, or at the
23 request of the person charged, issue a subpoena to compel the appearance
24 at a hearing of the officer who served the notice of violation or of
25 other persons to give testimony, and may issue a subpoena duces tecum to
26 compel the production for examination or introduction into evidence, of
27 any book, paper or other thing relevant to the charges.
28 (5) In the case of a refusal to obey a subpoena, the bureau may make
29 application to the supreme court pursuant to section twenty-three
30 hundred eight of the civil practice law and rules, for an order requir-
31 ing such appearance, testimony or production of evidence.
32 (6) The hearing officer shall not examine the parking or environmental
33 control board record of a person charged prior to making a determi-
34 nation.
35 § 7-1007 Judgments. The hearing officer shall make a determination on
36 the charges, either sustaining or dismissing them. Where the hearing
37 officer determines that the charges have been sustained he or she may
38 examine the parking or environmental control board violations record of
39 the person charged prior to rendering a judgment. Judgments sustaining
40 or dismissing charges shall be entered on a judgment roll maintained by
41 the bureau together with records showing payment and non-payment of
42 penalties.
43 § 7-1008 Appeals within the bureau. a. There shall be an appeals board
44 within the bureau which shall consist of three or more senior hearing
45 examiners, as the director shall determine.
46 b. An appeal from a judgment of any hearing officer shall be submitted
47 to the appeals board, which shall have power to review the facts and the
48 law, but shall not consider any evidence which was not presented to the
49 hearing officer and shall have power to reverse or modify any judgment
50 appealed from for error of fact or law.
51 c. A party aggrieved by the judgment of a hearing officer may obtain a
52 review thereof by serving upon the bureau within thirty days of the
53 entry of such judgment, a notice of appeal setting forth the reasons why
54 the judgment should be reversed or modified.
55 d. Appeals shall be made without the appearance of the appellant
56 unless requested by the appellant or the appeals board. Within ten days
A. 4083 4
1 after the request for an appearance, made by the appellant or the board,
2 the bureau shall advise the appellant, either personally or by regis-
3 tered or certified mail, return receipt requested, of the date on which
4 he or she shall appear. The appellant shall be notified in writing of
5 the decision of the appeals board.
6 e. The service of a notice of appeal shall not stay the enforcement of
7 a judgment appealed from unless the appellant shall have posted a bond
8 in the amount of the judgment appealed from, at that time of, or before
9 the service of such notice.
10 § 7-1009 Judicial review. The order of the appeals board shall be the
11 final determination of the bureau. Judicial review may be sought pursu-
12 ant to article seventy-eight of the civil practice law and rules.
13 § 3. Subdivisions e, g, and h of section 19-171.1 of the administra-
14 tive code of the city of New York, as added by local law number 19 of
15 the city of New York for the year 2007, are amended to read as follows:
16 e. Where a police or peace officer or an authorized employee of a
17 department designated by the commissioner serves a summons or notice of
18 violation for violation of this section on a person operating a multi-
19 passenger wheeled device or motorized pedicab, such multi-passenger
20 wheeled device or motorized pedicab may be seized. Any device seized
21 pursuant to this subdivision shall be delivered into the custody of the
22 police department. The [environmental control board] violations hearing
23 board shall hold a hearing to adjudicate the violation of subdivision b
24 of this section on an expedited schedule and shall render its determi-
25 nation accordingly.
26 g. Where the [environmental control board] violations hearing board
27 finds that there was no violation of subdivision b of this section, the
28 owner shall be entitled forthwith to possession of the multi-passenger
29 wheeled device or motorized pedicab without charge or to the extent that
30 any amount has been previously paid for release of the device, such
31 amount shall be refunded.
32 h. Where the [board] violations hearing board, after adjudication of
33 the violation of subdivision b of this section, finds a violation of
34 such subdivision, then (i) if the multi-passenger wheeled device or
35 motorized pedicab is not subject to forfeiture pursuant to paragraph one
36 of subdivision j, the police department shall release such device to its
37 owner upon payment of all applicable civil penalties and all reasonable
38 costs of removal and storage; or (ii) if the multi-passenger wheeled
39 device or motorized pedicab is subject to forfeiture pursuant to para-
40 graph one of subdivision j of this section, the police department may
41 release such device to its owner upon payment of all civil penalties and
42 all reasonable costs of removal and storage, or may commence a forfei-
43 ture action within ten days after the written demand by such owner for
44 such device.
45 § 4. Subdivisions c and f of section 19-176 of the administrative code
46 of the city of New York, subdivision c as amended and subdivision f as
47 relettered by local law number 14 of the city of New York for the year
48 2002, subdivision f as added by local law number 6 of the city of New
49 York for the year 1996, are amended to read as follows:
50 c. A person who violates subdivision b of this section in a manner
51 that endangers any other person or property shall be guilty of a misde-
52 meanor, punishable by a fine of not more than one hundred dollars or
53 imprisonment for not more than twenty days or both such fine and impri-
54 sonment. Such person shall also be liable for a civil penalty of not
55 less than one hundred dollars nor more than three hundred dollars,
56 except where [a hearing officer] the violations hearing board has deter-
A. 4083 5
1 mined that where there was physical contact between the rider and anoth-
2 er person, an additional civil penalty of not less than one hundred
3 dollars nor more than two hundred dollars may be imposed. Such civil
4 penalties may be recovered in a proceeding before the [environmental
5 control board] violations hearing board. Enforcement agents shall indi-
6 cate on the summons or notice of violation issued pursuant to this
7 subdivision whether physical contact was made between the rider and
8 another person. Any person who violates any provision of this subdivi-
9 sion more than once within any six month period shall be subject to the
10 imposition of civil penalties in an amount that is double what would
11 otherwise have been imposed for the commission of a first violation. It
12 shall be an affirmative defense that physical contact between a rider
13 and another person was in no way the fault of the rider.
14 f. The owner of a bicycle shall be given the opportunity for a post
15 seizure hearing within five business days before the [environmental
16 control board] violations hearing board regarding the impoundment. The
17 [environmental control board] violations hearing board shall render a
18 determination within three business days after the conclusion of the
19 hearing. Where the board finds that there was no basis for the impound-
20 ment, the owner shall be entitled forthwith to possession of the bicycle
21 without charge or to the extent that any amount has been previously paid
22 for release of the bicycle, such amount shall be refunded.
23 § 5. Subdivision i of section 10-117.3 of the administrative code of
24 the city of New York, as added by local law number 65 of the city of New
25 York for the year 2009, is amended to read as follows:
26 i. Penalty for failure to remove graffiti from commercial and residen-
27 tial buildings. The owner of a commercial or residential building who
28 has been given written notice pursuant to subdivision h of this section
29 and who fails to remove or conceal such graffiti within sixty days of
30 receipt of such notice or to consent to the marking shall be liable for
31 a civil penalty of not less than one hundred fifty dollars nor more than
32 three hundred dollars. Such civil penalty may be recovered in a proceed-
33 ing before the [environmental control] violations hearing board.
34 § 6. Subdivision e of section 18-108.1 of the administrative code of
35 the city of New York, as added by local law number 42 of the city of New
36 York for the year 1995, is amended to read as follows:
37 e. The owner of a motorcycle, all terrain vehicle, snowmobile or motor
38 vehicle shall be given the opportunity for a post seizure hearing within
39 five business days before the [environmental control] violations hearing
40 board regarding the seizure. The [environmental control] violations
41 hearing board shall render a determination within three business days
42 after the conclusion of the hearing. Where the [environmental control]
43 violations hearing board finds that there was no basis for the seizure,
44 the owner shall be entitled forthwith to possession of the motorcycle,
45 all terrain vehicle, snowmobile or motor vehicle without charge and to
46 the extent that any amount has been previously paid for release of the
47 motorcycle, all terrain vehicle, snowmobile or motor vehicle, such
48 amount shall be refunded.
49 § 7. Subdivisions a, c and d and paragraph (i) of subdivision e of
50 section 22-220 of the administrative code of the city of New York,
51 subdivisions a and d and paragraph (i) of subdivision e as amended by
52 local law number 54 of the city of New York for the year 1995 and subdi-
53 vision c as added by local law number 50 of the city of New York for the
54 year 1995, are amended to read as follows:
55 a. Any police officer or authorized officer or employee of the depart-
56 ment may, upon service of a notice of violation or criminal summons upon
A. 4083 6
1 the owner or operator of a vehicle or other property or equipment seize
2 such vehicle or such other property or equipment which such police offi-
3 cer or authorized officer or employee has reasonable cause to believe is
4 being used in connection with an act constituting a violation of subdi-
5 vision a of section 22-204, subdivision a of section 22-206 or subdivi-
6 sion c of section 22-208 of this chapter. Any vehicle, property or
7 equipment seized pursuant to this subdivision shall be delivered into
8 the custody of the department or other appropriate agency. Where a
9 notice of violation has been served, a hearing to adjudicate the
10 violation underlying the seizure shall be held before the [environmental
11 control] violations hearing board within five business days after the
12 seizure and such board shall render a decision within five business days
13 after the conclusion of the hearing. Where a criminal summons has been
14 served, a hearing to adjudicate the violation underlying the seizure
15 shall be held before a court of competent jurisdiction. In the event
16 that such court or the [environmental control] violations hearing board
17 determines that there has been no violation, the vehicle, property or
18 equipment that was seized shall be released forthwith to the owner or
19 any person authorized by the owner to take possession of such vehicle,
20 property or equipment.
21 c. Where a court of competent jurisdiction or the [environmental
22 control] violations hearing board makes a finding that the vehicle or
23 other property or equipment has not been used in connection with an act
24 constituting a violation of subdivision a of section 22-204, subdivision
25 a of section 22-206 or subdivision c of section 22-208 of this chapter,
26 the vehicle or other property or equipment shall be released forthwith
27 to the owner or any person authorized by the owner to take possession of
28 such vehicle, property or equipment.
29 d. Any vehicle or other property or equipment that has not been
30 claimed by the owner within ten business days after mailing by first
31 class mail to such owner of notice of a determination by a court of
32 competent jurisdiction or by the [environmental control] violations
33 hearing board that there has been no violation or that the vehicle or
34 other property or equipment was not used in connection with a violation
35 of subdivision a of section 22-204, subdivision a of section 22-206 or
36 subdivision c of section 22-208 of this chapter shall be deemed by the
37 department to be abandoned. Any vehicle unclaimed under the provisions
38 of this subdivision shall be disposed of by the department pursuant to
39 section twelve hundred twenty-four of the vehicle and traffic law. Prop-
40 erty or equipment other than a vehicle shall be disposed of by sale at
41 public auction following notice by publication in the city record
42 describing such property or equipment not less than ten business days
43 prior to such sale. Such notice shall provide that the owner may reclaim
44 such property or equipment until a date that shall be not sooner than
45 ten business days from the date the notice is published.
46 (i) In addition to any other fines, penalties, sanctions or remedies
47 provided for in this chapter, a vehicle or other property or equipment
48 which has been seized pursuant to subdivision a of this section and all
49 rights, title and interest therein shall be subject to forfeiture upon
50 notice and judicial determination thereof if the owner of such vehicle
51 or other property or equipment has been found liable by a court of
52 competent jurisdiction or the [environmental control] violations hearing
53 board on one or more prior occasions for using such vehicle or such
54 other property or equipment in connection with an act constituting a
55 violation of subdivision a of section 22-204, subdivision a of section
56 22-206 or subdivision c of section 22-208 of this chapter.
A. 4083 7
1 § 8. Subdivisions a, c and d and paragraph (i) of subdivision e of
2 section 22-262.1 of the administrative code of the city of New York, as
3 added by local law number 15 of the city of New York for the year 2000,
4 are amended to read as follows:
5 a. Any police officer or authorized officer or employee of the depart-
6 ment may, upon service of a notice of violation or criminal summons upon
7 the owner or operator of a vehicle or other property or equipment, seize
8 such vehicle or such other property or equipment which such police offi-
9 cer or authorized officer or employee has reasonable cause to believe is
10 being used in connection with an act constituting a violation of subdi-
11 vision a of section 22-253 of this chapter where such vehicle or other
12 property or equipment is owned, leased or rented by a person subject to
13 the provisions of such subdivision or such vehicle or other property or
14 equipment is owned by a person other than an employee and is used
15 directly by a person subject to the provisions of such subdivision. Any
16 vehicle, property or equipment seized pursuant to this subdivision shall
17 be delivered into the custody of the department or other appropriate
18 agency. Where a notice of violation has been served, a hearing to adju-
19 dicate the violation underlying the seizure shall be held before the
20 [environmental control] violations hearing board within five business
21 days after the seizure and such board shall render a decision within
22 five business days after the conclusion of the hearing. Where a criminal
23 summons has been served, a hearing to adjudicate the violation underly-
24 ing the seizure shall be held before a court of competent jurisdiction.
25 In the event that such court or the [environmental control] violations
26 hearing board determines that there has been no violation, the vehicle,
27 property or equipment that was seized shall be released forthwith to the
28 owner or any person authorized by the owner to take possession of such
29 vehicle, property or equipment.
30 c. Where a court of competent jurisdiction or the [environmental
31 control] violations hearing board makes a finding that the vehicle or
32 other property or equipment has not been used in connection with an act
33 constituting a violation of subdivision a of section 22-253 of this
34 chapter, the vehicle or other property or equipment shall be released
35 forthwith to the owner or any person authorized by the owner to take
36 possession of such vehicle, property or equipment.
37 d. Any vehicle or other property or equipment that has not been
38 claimed by the owner within ten business days after mailing by first
39 class mail to such owner of notice of a determination by a court of
40 competent jurisdiction or by the [environmental control] violations
41 hearing board that there has been no violation or that the vehicle or
42 other property or equipment was not used in connection with a violation
43 of subdivision a of section 22-253 of this chapter shall be deemed by
44 the department to be abandoned. Any vehicle unclaimed under the
45 provisions of this subdivision shall be disposed of by the department
46 pursuant to section twelve hundred twenty-four of the vehicle and traf-
47 fic law. Property or equipment other than a vehicle shall be disposed of
48 by sale at public auction following notice by publication in the city
49 record describing such property or equipment not less than ten business
50 days prior to such sale. Such notice shall provide that the owner may
51 reclaim such property or equipment until a date that shall be not sooner
52 than ten business days from the date the notice is published.
53 (i) in addition to any other fines, penalties, sanctions or remedies
54 provided for in this chapter, a vehicle or other property or equipment
55 which has been seized pursuant to subdivision a of this section and all
56 rights, title and interest therein shall be subject to forfeiture upon
A. 4083 8
1 notice and judicial determination thereof if the owner of such vehicle
2 or other property or equipment has been found liable by a court of
3 competent jurisdiction or the [environmental control] violations hearing
4 board on one or more prior occasions for using such vehicle or such
5 other property or equipment in connection with an act constituting a
6 violation of subdivision a of section 22-253 of this chapter.
7 § 9. Section 24-146.2 of the administrative code of the city of New
8 York, as added by local law number 101 of the city of New York for the
9 year 1989, is amended to read as follows:
10 § 24-146.2 Enforcement of the labor law. Pursuant to subdivision two
11 of section nine hundred ten of the labor law, the commissioner shall
12 have all the powers and responsibility of the commissioner of labor in
13 enforcing the provisions of article thirty of the labor law and the
14 rules and regulations adopted thereunder; provided, however, that the
15 civil penalties authorized pursuant to subdivisions one and two of
16 section nine hundred nine of such law shall be imposed by the [environ-
17 mental control] violations hearing board after a hearing in accordance
18 with the rules of the board.
19 § 10. Subdivision b, paragraph 1 of subdivision d and paragraph 4 of
20 subdivision e of section 24-346 of the administrative code of the city
21 of New York, subdivision b as amended by local law number 35 of the city
22 of New York for the year 2008, are amended to read as follows:
23 b. Any person who violates or fails to comply with any of the
24 provisions of this chapter and chapter four of this title or any order,
25 rule or regulation issued by the board or commissioner or with the
26 conditions of any permit issued by the commissioner within the city of
27 New York shall be liable for a civil penalty of not less than fifty nor
28 more than one thousand dollars for each violation. In the case of a
29 continuing violation each days continuance shall be a separate and
30 distinct offense. The environmental control board shall have the power
31 to impose such civil penalties. A proceeding to impose such penalties
32 shall be commenced by the service of a notice of violation returnable to
33 such board. Such board, after a hearing before the violations hearing
34 board as provided by the rules and regulations of the violations hearing
35 board, shall have the power to enforce its final decisions and orders
36 imposing such civil penalties as if they were money judgments pursuant
37 to subdivision d of section one thousand forty-nine-a of the New York
38 city charter. A civil penalty imposed by the board may also be collected
39 in an action brought in the name of the city in any court of competent
40 jurisdiction. The board, in its discretion, may, within the limits set
41 forth in this subdivision, establish a schedule of civil penalties indi-
42 cating the minimum and maximum penalty for each separate offense.
43 1. In the case of any continued or knowing violation of any of the
44 provisions of this chapter and chapter four of this title or any order,
45 rule or regulation issued by the board or commissioner or of the condi-
46 tions of any permit issued by the commissioner within the city of New
47 York or where the board finds that the violation of any of such
48 provisions or of the conditions of any such permit presents or may pres-
49 ent a danger to the water supply or the water supply system, the board
50 after notice and the opportunity for a hearing before the violations
51 hearing board in accordance with the rules and regulations of the
52 violations hearing board, may issue a cease and desist order requiring
53 any person who owns, leases, operates, controls or supervises any build-
54 ing, structure, facility, device, equipment, installation or operation
55 to cease and desist from any activity or process which causes or is
A. 4083 9
1 conducted so as to cause such violation within the time specified in
2 such order.
3 4. Any person affected by such an order may make written application
4 to the [environmental control] violations hearing board for a hearing
5 before the violations hearing board. Such hearing shall be provided,
6 pursuant to the rules and regulations of the board, and shall be held
7 within forty-eight hours after the receipt of such application. The
8 board may suspend, modify or terminate such order.
9 § 11. This act shall take effect immediately.
