Regulates at the state level and authorizes political subdivisions to regulate the practice of booting of motor vehicles, defined as placing a mechanical device upon a vehicle so as to prohibit movement thereof from a parking space; requires persons engaged in the practice to be licensed.
STATE OF NEW YORK
________________________________________________________________________
4387
2011-2012 Regular Sessions
IN ASSEMBLY
February 3, 2011
___________
Introduced by M. of A. BRENNAN, DINOWITZ -- Multi-Sponsored by -- M. of
A. COLTON, HOOPER, MAISEL, McENENY, ROBINSON -- read once and referred
to the Committee on Transportation
AN ACT to amend the vehicle and traffic law, in relation to booting of
motor vehicles
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Title 8 of the vehicle and traffic law is amended by adding
2 a new article 44-B to read as follows:
3 ARTICLE 44-B
4 BOOTING OF MOTOR VEHICLES
5 Section 1700. Definitions.
6 1701. Applicability.
7 1702. Licensure and registration.
8 1703. Compensation and records.
9 1704. Application, signs, charges and release of vehicles.
10 1705. Suspension, revocation and renewal of license.
11 1706. Enforcement and penalties.
12 1707. Rules.
13 § 1700. Definitions. For purposes of this article, the following
14 terms shall have the following meanings:
15 1. "Boot" or "booting" shall mean the act of placing on a parked motor
16 vehicle a mechanical device that is designed to be attached to the wheel
17 or tire or other part of such vehicle so as to prohibit its usual manner
18 of movement;
19 2. "Person" shall mean any individual, partnership, corporation, asso-
20 ciation, firm or other business entity;
21 3. "Private parking lot" shall mean any area of private property near
22 or contiguous to premises having one or more stores or business estab-
23 lishments which is used for the parking of motor vehicles of customers
24 or patrons or anyone who frequents such stores and business establish-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00969-01-1
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1 ments, but shall be limited to such areas as are provided to the public
2 without charge; and
3 4. "Private street" shall mean every way or place in private ownership
4 that is used for vehicular travel by the owner and those having express
5 or implied permission of the owner or that may be used by the public for
6 vehicular travel.
7 § 1701. Applicability. 1. The provisions of this article shall not
8 apply to the booting of a motor vehicle by:
9 (a) a city, any other political subdivision, or a person acting under
10 the direction of a city or such political subdivision, when such booting
11 is authorized by any other provision of law or any rule or regulation
12 promulgated pursuant thereto; or
13 (b) any person who has a lien and who detains such motor vehicle in
14 his or her lawful possession.
15 2. Where a political subdivision regulates the practice of booting,
16 such regulation shall at a minimum comply with the provisions of this
17 article; provided that nothing herein shall preempt the provisions of
18 any local law that imposes more restrictive requirements or regulations.
19 § 1702. Licensure and registration. 1. No person shall engage in boot-
20 ing without having first obtained a license therefor pursuant to this
21 section and meet any additional criteria established by the political
22 subdivision. No person shall be an employee of a licensee without having
23 first submitted to a background check, registered with the political
24 subdivision and met any additional criteria established by the political
25 subdivision.
26 2. Notwithstanding the provisions of subdivision one of this section,
27 an individual shall not require a license issued pursuant to this
28 section where such individual is an employee of, and is authorized or
29 directed to engage in, booting by a person required to be licensed by
30 this section or to accept payment for releasing vehicles booted by such
31 licensee or such licensee's employees.
32 3. An application for any license required under this section or for
33 any renewal thereof shall be made to the political subdivision in such
34 form and manner as provided by such political subdivision. An applicant
35 for any such license shall be fingerprinted for the purpose of securing
36 criminal history records and shall pay a processing fee as required by
37 the state division of criminal justice services. Where the applicant is
38 a sole proprietorship, fingerprints shall be taken of the owner thereof;
39 where the applicant is a partnership, fingerprints shall be taken of the
40 general partners thereof; where the applicant is a corporation, associ-
41 ation, firm or other business, fingerprints shall be taken of the offi-
42 cers, principals, directors, and stockholders of more than ten percent
43 of the outstanding stock.
44 (a) Where the applicant for license to engage in booting or any
45 renewal thereof is a corporation, partnership, association, firm or
46 other business, such applicant shall list on his or her application for
47 such license or such renewal the names, addresses, and telephone numbers
48 of each officer, director, principal stockholder owning more than ten
49 percent of the outstanding stock, or of each partner.
50 (b) Where an applicant for license or any renewal thereof conducts
51 business under a trade name or the applicant is a partnership, the
52 application for license shall include the trade name or partnership
53 certificate duly certified by the clerk of the county in whose office
54 said certificate is filed. If the applicant is a corporation, a copy of
55 the filing receipt or certificate of incorporation filed and stamped by
56 the New York state secretary of state shall be submitted with a certif-
A. 4387 3
1 icate of assumed name or the filing receipt thereof, if assumed name is
2 used.
3 4. As a condition of the issuance of a license to engage in booting,
4 each applicant shall furnish to the political subdivision a surety bond
5 in the sum of five thousand dollars, payable to the local authority,
6 executed by the applicant and a surety approved by the authority. Such
7 bond shall be conditioned upon the applicant's compliance with the
8 provisions of this article, local ordinance and any rules or regulations
9 promulgated thereunder, and upon the further condition that the appli-
10 cant shall pay to the local authority any fine, penalty or other obli-
11 gation within thirty days of its imposition, or any final judgments
12 awarding from damages occasioned to any person by reason of any misrep-
13 resentation, fraud, or deceit, or any unlawful act or omission of such
14 licensee, his or her agents or employees, while acting within the scope
15 of their employment, made, committed or omitted in the business of boot-
16 ing. The local authority may, after a public hearing, increase the
17 amount of the surety bond required by this section to an amount not to
18 exceed twenty thousand dollars. The political subdivision may by local
19 ordinance or by regulation authorize the applicant to, in lieu of a
20 bond, deposit cash to satisfy the requirements of this section in an
21 amount equal to the sum of the surety bond required by this section.
22 5. (a) No person shall be employed by a licensee to engage in booting
23 or to accept payment for releasing vehicles booted by such licensee or
24 such licensee's employees without having first submitted an application
25 for a background check and registration with the political subdivision
26 which shall include but not be limited to fingerprinting for the purpose
27 of securing criminal history records and registered with such authority.
28 Such person shall pay a processing fee as required by the state division
29 of criminal justice services. An application for a background check and
30 registration with the political subdivision required under this section
31 or for any renewal thereof shall be made to the local authority in such
32 form and manner as provided by such political subdivision.
33 (b) No person who is required to obtain a license under this section,
34 shall permit or authorize a person to engage in booting or to accept
35 payment for releasing vehicles booted by such licensee or such
36 licensee's employees who has not submitted to a background check by and
37 registered with the political subdivision as required under this
38 section. In any prosecution for violation of this article, local ordi-
39 nance or any rules or regulations promulgated thereunder it shall not be
40 necessary to prove that such licensee knew or should have known that the
41 employee did not register and that there shall be a rebuttable presump-
42 tion that such person engaged in booting or accepted payment with the
43 permission or authorization of such licensee. In any such prosecution,
44 it shall be an affirmative defense that prior to being cited for such
45 violation, such person submitted to the background check and registered
46 with the political subdivision.
47 6. A licensee shall issue a tamper-proof identification badge to each
48 individual who is an employee of the licensee and who is authorized by
49 the licensee to engage in booting, and to each person who is authorized
50 to accept payment for releasing vehicles booted by such licensee or such
51 licensee's employees. Such badge shall be made from forms to be
52 furnished by the political subdivision. At a minimum the name of the
53 individual, the licensee's business name and the licensee number shall
54 be printed on the badge. Such badge shall be displayed conspicuously.
55 7. The political subdivision may deny an application for a license or
56 renewal of a license or, after notice and hearing, revoke or suspend any
A. 4387 4
1 license issued pursuant to this section and local ordinance or any rule
2 promulgated pursuant thereto, and/or impose a civil penalty not exceed-
3 ing ten thousand dollars on a licensee, if it finds that an applicant, a
4 licensee, any officer, director, partner, or owner of more than ten
5 percent of the outstanding stock of an applicant or licensee, or the
6 chief executive officer of an applicant or licensee has including but
7 not limited to:
8 (a) made a material misstatement or misrepresentation on an applica-
9 tion for such a licensee or the renewal thereof; or
10 (b) made a material misrepresentation or omission or committed a frau-
11 dulent or unlawful act while engaged in the business of booting; or
12 (c) convicted of bribing or attempting to bribe any officer or employ-
13 ee of the local authority; or
14 (d) violated any applicable rule of the authority.
15 8. The political subdivision may deny an application for a background
16 check and registration with the political subdivision, after notice and
17 hearing, revoke or suspend any registration pursuant to this section and
18 local ordinance or any rule promulgated pursuant thereto, and/or impose
19 a civil penalty not exceeding twenty-five hundred dollars on a regis-
20 trant, if it finds that an applicant, or a registrant has including but
21 not limited to:
22 (a) made a material misstatement or misrepresentation on an applica-
23 tion for such registration or the renewal thereof; or
24 (b) made a material misrepresentation or omission or committed a frau-
25 dulent or unlawful act while engaged in booting or accepting payment for
26 releasing vehicles booted by a licensee; or
27 (c) convicted of bribing or attempting to bribe any officer or employ-
28 ee of the local authority; or
29 (d) violated any applicable rule of the political subdivision.
30 § 1703. Compensation and records. 1. A licensee shall not make the
31 compensation of any employee directly dependent, in part or in whole
32 upon the number of vehicles booted.
33 2. A property owner authorizing the booting of vehicles shall not make
34 the compensation of any licensee directly dependent, in part or in whole
35 upon the number of vehicles booted.
36 3. A licensee shall maintain an updated, complete, accurate and legi-
37 ble record of all identification badges issued as provided in this
38 section. Such record at a minimum shall include the identification
39 number assigned to each employee and to whom it was issued, the date on
40 which the individual was first employed or authorized to accept payment
41 of the release of booted vehicles, the date the badge was issued and the
42 date on which the badge was returned by such individual, where appropri-
43 ate. Upon request, such record shall be made available for inspection by
44 the local authority either at the licensee's place of business or at the
45 offices of the political subdivision.
46 4. A licensee shall also maintain complete, accurate and legible
47 records and receipts to substantiate that vehicles are booted in compli-
48 ance with the requirements of this article, local ordinance or any rule
49 promulgated pursuant thereto. The records for each property shall be
50 identified with the name of the owner of said property and shall be kept
51 chronologically.
52 § 1704. Application, signs, charges and release of vehicles. 1. No
53 motor vehicle may be booted unless a sufficient number of signs at and
54 adjacent to a private parking lot where vehicles are booted is conspicu-
55 ously posted and maintained by the owner of the property in the form,
56 manner and location prescribed by the political subdivision. Such signs
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1 shall contain such information as the political subdivision shall
2 prescribe including, but not limited to, the name, business address,
3 business telephone number and license number of the person authorized by
4 the property owner to boot the vehicle, the name of the property owner,
5 the hours during which and the circumstances under which vehicles are
6 prohibited from parking on such property and are subject to booting, the
7 fees to be charged for booting and the telephone number of the office at
8 the political subdivision responsible for receiving complaints regarding
9 booting.
10 2. Notwithstanding subdivision one of this section, the provisions of
11 this section shall be satisfied with respect to a private street if (i)
12 a sign containing the information required by this subdivision is posted
13 and maintained by the owner of such private street at each place where
14 such private street intersects a public street and such signs are situ-
15 ated in such a manner as to be readily visible and readable by the oper-
16 ator of a motor vehicle traveling from a public street onto such private
17 street, and (ii) there are also a sufficient number of signs on every
18 other private street that is in the same ownership stating that vehicles
19 parked on such street without the permission of such owner may be booted
20 and containing the business telephone number of the person authorized by
21 the owner to boot the vehicle, which signs are readily visible and read-
22 able by an operator of a motor vehicle traveling on such street.
23 3. No charge for the release of a vehicle that has been booted in
24 excess of that which is contained in the signs required by this subdivi-
25 sion may be imposed.
26 4. In addition to the provisions of subdivision one of this section,
27 no motor vehicle may be booted:
28 (a) unless such vehicle is unlawfully parked;
29 (b) where such vehicle is occupied by any person or live animal;
30 (c) when such vehicle is parked on the roadway side of a vehicle
31 stopped, standing or parked at the curb;
32 (d) where such vehicle is parked in a fire lane, or in front of or
33 immediately adjacent to a fire hydrant, fire connection or building
34 emergency exit;
35 (e) unless the express written authorization of the owner of a private
36 driveway blocked by such vehicle has been obtained, which authorization
37 includes the location, make, model, color and license plate number of
38 such vehicle;
39 (f) if such vehicle is an ambulance, correction vehicle, police vehi-
40 cle, fire vehicle, civil defense emergency vehicle, emergency ambulance
41 service vehicle, environmental emergency response vehicle, sanitation
42 patrol vehicle, hazardous materials emergency vehicle, ordinance
43 disposal vehicle of the armed forces of the United States; and
44 (g) where such vehicle bears a special vehicle identification parking
45 permit or "MD" New York registration plates.
46 5. Immediately after a vehicle is booted, the person booting such
47 vehicle, the owner of the property where such vehicle was booted, or an
48 employee or agent of such person or owner, shall affix at the rear-most
49 portion of the window adjacent to the driver's seat of such vehicle a
50 sticker measuring eight and one-half inches by eleven inches containing
51 a warning that any attempt to move the vehicle may result in damage to
52 the vehicle, and stating the time the vehicle was booted and the name,
53 business address and the license number of the person who booted such
54 vehicle as well as a business telephone number which will facilitate the
55 dispatch of personnel responsible for removing the boot within thirty
56 minutes of the time such request is made. Upon payment of the booting
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1 fee, the licensee shall remove the window sticker immediately at no
2 extra charge.
3 6. No release or waiver of any kind purporting to limit or avoid
4 liability for damages to a vehicle that has been booted shall be valid.
5 In addition, any person who booted a vehicle, or other person authorized
6 to accept payment of any charges for such booting, shall provide a
7 signed receipt to the individual paying the booting charges at the time
8 such charges are paid. Such receipt shall state the name, business
9 address, business telephone number and license number of the person who
10 has booted such vehicle as such information appears on the license to
11 engage in booting, and such receipt shall also include a telephone
12 number for the office within the political subdivision responsible for
13 receiving complaints with respect to booting. The booting receipt shall
14 also advise the owner of the vehicle that such person is entitled to ask
15 and have a hearing before the political subdivision if he or she
16 disputes the justification given or the amount charged for the booting
17 of such vehicle, for other violations of law or the rules governing
18 booting or for damages as a result of booting. Such notice shall also
19 indicate that no release or waiver of any kind purporting to limit or
20 avoid liability for damages to a vehicle that has been booted shall be
21 valid.
22 7. The charge to release a motor vehicle that has been booted on a
23 private parking lot shall be no more than one hundred dollars. Notwith-
24 standing the provisions of any other law, where a motor vehicle has been
25 booted on a private parking lot and subsequently towed from such parking
26 lot, no additional charge may be imposed for the towing of such vehicle.
27 The owner or person in control of a vehicle which has been booted by a
28 licensee or such licensee's employee or agent shall be permitted to pay
29 any charge for booting at the location where such vehicle was booted and
30 the licensee, or other person authorized to accept payment, shall accept
31 such payment, in person by credit card in accordance with generally
32 accepted business practices.
33 8. No charge shall be imposed for the booting of a vehicle in
34 violation of this section or any local ordinance or any rule promulgated
35 pursuant thereto and any such unlawful charge shall be reimbursed by any
36 person found to have violated this section or any local ordinance or any
37 rule promulgated pursuant thereto.
38 9. Any person who has booted a motor vehicle shall release such vehi-
39 cle within thirty minutes of receiving the request for such vehicle's
40 release; provided, however, that payment of any charge for booting is
41 made at or prior to the time of such vehicle's release. The owner or
42 person in control of a vehicle which has been booted by a licensee or
43 such licensee's employee or agent shall be permitted to pay any charge
44 for booting at the location where such vehicle was booted and the licen-
45 see, or the person authorized to accept payment, shall accept such
46 payment in person by credit card in accordance with generally accepted
47 business practices.
48 § 1705. Suspension, revocation and renewal of license. After due
49 notice and opportunity to be heard, the political subdivision may
50 suspend, revoke or refuse to renew any license required by this article
51 or suspend, revoke or refuse to register any employee of a licensee upon
52 a determination that the licensee or any employee or any agent of such
53 licensee has violated any provision of this article, any local ordinance
54 or any rule promulgated pursuant thereto or where:
55 1. the licensee or any employee or any agent or where applicable its
56 officers, principals, directors, or stockholders owning more than ten
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1 percent of the outstanding stock of the corporation were found to have
2 booted a vehicle in a grossly negligent manner or in a manner showing a
3 reckless disregard for life or property; or
4 2. the licensee or any employee or where applicable its officers,
5 principals, directors or stockholders owning more than ten percent of
6 the outstanding stock of the corporation have made a material false
7 statement or concealed a material fact in connection with the filing of
8 any application pursuant to this section or any local ordinance or any
9 rule promulgated pursuant thereto.
10 § 1706. Enforcement and penalties. 1. No licensee shall boot, permit
11 or authorize booting in violation of the provisions of this article,
12 local ordinance or any rule promulgated pursuant thereto.
13 2. A licensee shall be liable for any violation by such licensee's
14 employees or agents of this article, local ordinance or any rule promul-
15 gated pursuant thereto.
16 3. Authorized employees of the political subdivision or any police
17 officer, shall have the power to enforce any provision of this article
18 or any rule promulgated pursuant thereto. Any person who violates any
19 provision of this section, local ordinance or any rule promulgated
20 pursuant thereto shall be liable for a civil penalty of not less than
21 five hundred nor more than one thousand dollars to the political subdi-
22 vision. Any property owner who authorizes the licensee to boot on said
23 property shall also be liable for any violation of the licensee for a
24 civil penalty of not less than two hundred fifty dollars nor more than
25 five hundred dollars to the political subdivision.
26 4. The political subdivision shall arrange for the redress of any
27 injuries caused by violation of this section, local ordinance or any
28 rule promulgated pursuant thereto by providing for hearings and shall
29 otherwise provide for compliance with the provisions and purposes of
30 this section. Provided however, where a vehicle was wrongfully booted or
31 damaged as a result of the booting, the owner of such vehicle shall not
32 only have a means of redress for damages against the licensee but shall
33 also have redress for damages against the owner of the property who
34 authorized the booting. Upon petition of the owner of said vehicle, the
35 political subdivision may in addition to ordering the payment of any
36 damages or restitution, direct the licensee and owner of said property
37 to pay the owner of the vehicle other out-of-pocket expenses not to
38 exceed one hundred fifty dollars.
39 § 1707. Rules. The political subdivision is authorized to promulgate
40 such rules as the political subdivision deems necessary to effectuate
41 the provisions of this article.
42 § 2. This act shall take effect on the first of November next succeed-
43 ing the date on which it shall have become a law.
