Matter of Prince v City of New York
2012 NY Slip Op 30518(U)
March 1, 2012
Sup Ct, NY County
Docket Number: 403135/11
Judge: Cynthia S. Kern
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
Index Number : 403139201 1
C l l Y OF NEW YORK
SEQUENCE NUMBER : 001
The following papsm, numbered 1 to
Notice of NlotlonlOrder to Show Cause
MOTION SEQ. NO.
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1. CHECK ONE:
$! CASE DISPOSED
2. CHECK AS APPROPRIATE: ...........................MOTioN
3. CHECK IF APPROPRIATE:
0GRANTED IN PART
0DO NOT POST
Index No. 403135111
For a Judgment Pursuant to Article 78 of the
Civil Practice Laws and Rules,
-againstTHE CITY OF NEW YORK,
Recitation, as required by CPLR 22 19(a), of the papers considered in the review of this motion
Notice of Petition and Affidavits Annexed ....................................
Answering Affidavits and Cross Motion ......................................
Petitioner brings this petition seeking to annul the decision of the New York Ct
Environmental Control Board (,‘E,,”)
impounding petitioner’s vehicle pending payment of a
$2000 finefor “removal of recyclables from residence using motor vehicles,” for a judgment that
the vehicle impoundment is unconstitutional, for a judgment that the penalty constitutes an
excessive fine and for an order continuing the order of the ECB suspending payment of the fine
pending appeal, For the reasons set forth more fully below, the petition is denied.
The relevant facts are as follows. Petitioner is an artist who uses “found objects” in his
art. It is undisputed that on Wednesday, February 23,201 1, petitioner took a rooftop television
antenna made of recyclable metal, as well as metal cans, into his car in front of 1602 East 53rd
Street, a one or two family house, in Brooklyn. Petitioner alleges that he took these items to use
in his artwork. The sanitation officer who issued him the citation testified that petitioner claimed
he redeems some of the metal at a scrap yard. In any event, it is undisputed that petitioner w s
in violation of NYC Administrative Code $ 16-1 18(7)(b)(l) which prohibits removing recyclable
materials which have been placed outside for collection by the sanitation department and
transporting them by vehicle. NYC Admin. Code 5 16-1 18(7)(f)(l)(i) imposes a $2,000 fine for
the first such offense and $16-1 18(7)(g)(l) requires that the motor vehicle used in committing the
violation be impounded.
On March 23,201 1, petitioner appeared at ECB and was granted an expedited hearing,
which was held that very day, rather than the originally scheduled date of March 29,201 1 . The
hearing was held before Administrative Law Judge Judith E. Stein. By decision dated March 23,
201 1, ALJ Stein found that petitioner was in violation of $16-1 18(7)(b)(l). and therefore imposed
a fine of $2,000. ALJ Stein stated that she did not have the discretion to lower or waive the fine.
Petitioner appealed the ECB’s decision by Notice of Appeal dated March 3 1,201 1. Petitioner
also requested a waiver of the civil penalty due to financial hardship. By letter dated May 9,
201 1, ECB informed petitioner that it had granted his request for a waiver pending the appeal.
By stipulation dated June 24,2011, petitioner and the Sanitation Department agreed to cap
storage fees for petitioner’s vehicle at $500 and to release the vehicle before having to pay the
fine. By decision dated October 27,201 1 , the appeal panel affirmed ALJ Stein’s decision.
Petitioner’s argument that the $2,000 is an excessive fine within the meaning of the
Eighth Amendment of the United States Constitution and Article 1, section 5 of the New York
State Constitution is without merit. (‘The question is not whether [the court] might have imposed
another or different penalty, but whether the agency charged with disciplinary responsibility
reasonably acted within the scope of its powers.” Pell, 34 N.Y.2d at 238. Moreover, a fine is
excessive only if the fine constitutes punishment and is grossly disproportionate to the gravity of
the offense. United States v Mackby, 243 F.3d 1159, 1167 (9* Cir. 2001); Street Vendor Project
v City oflvew York, 10 Misc.3d 978,982-83 (Sup. Ct. N.Y. Cty 2005). One of the factors to be
considered in determining whether a fine is disproportionate is whether the fine imposed is
required to achieve the desired deterrence, See Mackby; 243 F.3d at 1 167; Street Vendor Project,
10 Misc.3d at 982-83. During the hearings before the City Council, the Department of Sanitation
testified that the prior fine of $100 was not producing the required amount of deterrence. Based
on the foregoing, petitioner has failed to establish that the fine imposed was grossly
disproportionate to the gravity of the offense or that the amount of the fine was not reasonably
related to the permissible goal of deterrence.
Moreover, fines cannot be excessive “where the offending individual has the power to
mitigate the accrual of fines or penalties.” See Street Vendor Project, 10 Misc.3d at 982. In the
instant case, petitioner could have avoided the fine by not taking the recyclables or by obtaining
the owner’s permission to take them.
The court also finds that the impoundment of the vehicle is not an excessive fine. In
County ofNassau v Canavan,1 N.Y.3d 134, 140-41 (2003), the Court of Appeals held that
forfeitwe of a car could be excessive under certain circumstances. However, in the instant case,
the penalty was not forfeiture in which the car cannot be recovered but impoundment in which
the car can be recovered.
Petitioner’s argument that he was denied due process in that he did not receive a prompt
decision on the need for vehicle impoundment in conformity with 48 RCNY 1-32 is meritless.
Petitioner received a prompt post-seizure hearing relating to the vehicle impoundment.
Petitioner could have requested an expedited hearing sooner (see 48 RCNY $2-5 1) but did not.
When he did request an expedited hearing, on March 23,20 1 1, it was held that very day.
Moreover, 48 RCNY 1-32 does not apply to proceedings before the ECB.
Petitioner’s argument that he was denied due process because the relevant statute lacks a
mens rea requirement is also without basis. Petitioner points to no case law requiring that mental
intent be read into every statute creating civil violations. His citation to Morisette v United
States, 342 U.S.246 (1951) is irrelevant as that case involved criminal violations. Moreover, the
civil cases petitioner cites to do not stand for the proposition that all civil violations must have a
mens rea requirement. See Properry Clerk v Pugano, 170 A.D.2d 30 (1 Dept 1991); 244 East
53rdStreet Rest. Inc. v New York State Liquor Authorily, 86 A.D.2d 832 (1 I‘ Dept 1982).
To the extent that petitioner argues that it was arbitrary and capricious to enforce the
statutes as written because such enforcement does not reflect the underlying intent of the statutes,
that argument is without merit, When a statute is unambiguous on its face, the court may not
look beyond the plain language to the legislative intent. See Encore College Bookstores, h c . v
Auxiliury Service Corp. O the State University of New York at Farmingdale, 87 N.Y.2d 410,417
(1995). In the instant case, the relevant statutes are unambiguous on their face and provide that
anyone who takes recyclables off the street and puts them in a motor vehicle is subject to a
$2,000 fme and impoundment of that vehicle. Petitioner argues that the Department of
Sanitation’s statements during hearings on the relevant statute that it was aimed only at “those
[taking recyclables] for commercial purposes... and in great bulk” means that the ECB’s and
ALJ’s enforcement of the statutes as written was arbitrary and capricious. Petitioner is incorrect.
Since the statutes are unambiguous on their face, this court may not look beyond their plain
language to the legislative intent. See Encore, 87 N.Y.2d at 417. The statute as written does not
apply only to those persons taking recyclables off the street “for commercial purposes and in
great bulk.” Therefore, the ECB did not act arbitrarily when it enforced the statute as written and
issued petitioner a notice of violation and ALJ Stein did not act arbitrarily when she imposed the
mandatory fine. It is not the role of the courts to rewrite the statute to make exceptions for
people taking items in small number or for artistic purposes. If the legislature so chooses, it may
amend the statute or the Department of Sanitation may direct its employees not to issue notices
of violation for people taking recyclables in small amounts. However, as they currently stand,
the applicable statutes contain no such exceptions and the ECB and ALJ’s enforcement of them
as written was not arbitrary and capricious.
Accordingly, the petition is denied. This constitutes the decision, order and judgment of