Sanitation Summons for Other People's Garbage

[Michael Wechsler]

I picked up my family's mail at my parents' house in New York City, where I stay occasionally during the summers while they are away. Today we received a summons from the Environmental Control Board - a Notice of Violation and Hearing. We have trash pick up every Friday morning, which includes recyclable bottles, glass and paper. Friday at noon is alternate side of the street parking / street cleaning. So you can imagine my surprise when I saw that the summons was dated for a Monday morning at 8:10AM. Now here is what the complainant wrote regarding violation code 526 which allegedly violated New York City Administrative Code 16-118(2)(A) Failure to clean 18" into the street:

At T/P/O I did observe matted papers, snack wrappers and coffee cups scattered within 18" of curb line during the 0800Am - 0859AM routing time.

Remember that this is a New York City borough where garbage is thrown out of car windows with a frequency higher than probably most cities in the US. There isn't a day when at least half the block has some type of garbage in the street, which is unfortunate but a fact of life here. I am guessing that this officer is sent to observe sanitation violations of some serious nature that would affect the reasonable cleanliness of the neighborhood. The officer didn't say that we had trash cans overflowing, broken trash bags or garbage on the sidewalk or any area near our home. No - the officer seems to imply that there was some garbage in the street within a foot and a half of our home.

As a result of this I am going to be headed into the New York City Environmental Control Board for a hearing. I would like to know first hand how the City of New York can expect this type of summons to be given any credibility or enforceability. How is a homeowner supposed to keep not just the sidewalk but also the street free from garbage 24 hours per day? How can any taxpayer travel to work if they need to make sure that the street is clean in front of their home between 8AM and 9AM in the morning?

This will be a complete waste of time but I plan on writing and sharing more about this issue.

 

[Michael Wechsler]

New York City Administrative Code
Title 16: Sanitation

§ 16–118 Littering prohibited.
1. No person shall litter, sweep, throw or cast, or direct, suffer or permit any servant, agent, employee, or other person under his or her control, to litter, sweep, throw or cast any ashes, garbage, paper, dust or other rubbish and refuse of any kind whatsoever, in or upon any street or public place, vacant lot, air shaft, areaway, backyard court or alley.

2. (a) Every owner, lessee, tenant, occupant or person in charge of any building or premises shall keep and cause to be kept the sidewalk, flagging and curbstone abutting said building or premises free from obstruction and nuisances of every kind, and shall keep said sidewalks, flagging, curbstones, and air shafts, areaways, backyards, courts and alleys free from garbage, refuse, rubbish, litter, debris and other offensive material. Such persons shall also remove garbage, refuse, rubbish, litter, debris and other offensive material between the curbstone abutting the building or premises and the roadway area extending one and one-half feet from the curbstone into the street on which the building or premises front. Such persons shall not, however, be responsible for cleaning the garbage, refuse, rubbish, litter, debris and other offensive material which accumulates at catch basins located within the one and one-half foot distance from the curbstone into the street.

(b) Every owner, lessee, tenant or person in charge of any vacant lot shall keep and cause to be kept the sidewalk, flagging and curbstone abutting said vacant lot free from obstruction and nuisances of every kind, and shall keep said sidewalks, flagging and curbstones free from garbage, refuse, rubbish, litter, debris and other offensive material. Every owner, lessee, tenant or person in charge of any vacant lot shall keep and cause to be kept said vacant lot free from garbage, refuse, rubbish, litter, debris and other offensive material. Such persons shall also remove garbage, refuse, rubbish, litter, debris and other offensive material between the curbstone abutting the vacant lot and the roadway area extending one and one-half feet from the curbstone into the street on which the vacant lot fronts. Such persons shall not, however, be responsible for cleaning the garbage, refuse, rubbish, litter, debris and other offensive material which accumulates at catch basins located within the one and one-half foot distance from the curbstone into the street.

 

[mightymoose]

Pretty lame.
Seems like one of those things where they hope people will just pay up and not bother to challenge.

 

[Michael Wechsler]

You hit the nail on the head. Finding the law online was a challenge too. They make it incredibly easy to pay on the spot but not to immediately see the entire text of the New York City Administrative / Sanitation Code they are accusing the respondent of violating.

The City of New York has done some other counterproductive things in this smaller suburban neighborhood. They took time and money to install pay stations so that the 2-3 car lengths at the end of each block will require paying the city to park. It's confusing to the average person who parks since the overwhelming majority won't realize or believe the splitting of the hair except for those who are residents and those who are carefully paying attention to the two different signs for each section.

I plan on getting a clear understanding of this ordinance from the ALJ so that I can determine whether it actually requires a homeowner to keep the street clean 24 hours per day or be subject to a $100 fine (up to $250.) Looking at the code itself, it doesn't have any reasonableness standard attached to it. I found the following code very interesting about the "routing system" that New York City has implemented. This is fascinating:

 

[Michael Wechsler]

New York City Administrative Code -
Title 16: Sanitation
§ 16–118.1 Citywide routing system.

(3) a. The department shall implement a citywide routing system for residential premises for the enforcement of subdivision two of section 16–118 of this code, as such subdivision relates to the cleaning of sidewalks, flagging, curbstones, airshafts, backyards, courts, alleys and roadway areas by owners, lessees, tenants, occupants or persons in charge of any such premises, and for commercial premises for the enforcement of such subdivision as such subdivision relates to cleaning of sidewalks, flagging, curbstones and roadway areas by owners, lessees, tenants, occupants or persons in charge of such premises. The citywide enforcement routing system shall limit the issuance of notices of violation, appearance tickets or summonses within any sub-district of a local service delivery district to predetermined periods of a total of no more than two hours each day, provided that each such predetermined period shall be one hour. The department shall establish a citywide schedule of periods for issuing notices of violation, appearance tickets or summonses for commercial premises in each district and shall give written notice to the owners, lessees, tenants, occupants or persons in charge of such premises in each district of the periods for the district in which their premises are located by the use of flyers, community meetings or such other techniques as the commissioner reasonably determines to be useful. The two one-hour predetermined periods for issuing notices of violation, appearance tickets or summonses for residential premises shall be from 8:00 a.m. until 9:00 a.m. and from 6:00 p.m. until 7:00 p.m.

b. Notwithstanding the provisions of subdivision a of this section, the commissioner may provide an additional predetermined period of one hour per day during which notices of violation, appearance tickets or summonses may be issued in any sub-district within a local service delivery district upon the commissioner's determination that the total of two hours otherwise permitted by this section is not sufficient to maintain the sidewalks, flagging, curbstones and roadways in such sub-districts in an adequately clean condition. Such determination shall be based upon a finding that there has been a decline in the average street cleanliness ratings compiled by the mayor's office of operations for such district for the most recent three-month period as compared to the average street cleanliness ratings compiled by the mayor's office of operations for the same three-month period in fiscal year nineteen hundred ninety. Notice of any increase in the number of hours during which notices of violation, appearance tickets or summonses can be issued or of any change in such hours shall be given by letter to the community board, the owners, lessees, tenants, occupants or persons in charge of any premises in the affected sub-districts within a local service delivery district and every council member representing the local service delivery district no less than forty-five days prior to the implementation of such increase or change. Any additional notice may be given by use of letters, flyers, community meetings or such other techniques as the commissioner reasonably determines to be useful. Written notice to a council member shall be sent to the council member's district office.

c. For the purpose of this section, the following terms shall have the following meanings: (i) "local service delivery district" means a local service delivery district as described in chapter sixty-nine of the charter of the city of New York; (ii) "sub-district" means a section within a local service delivery district as described in chapter sixty-nine of the charter of the city of New York; and (iii) "commercial premises" means any premises abutting the sidewalk at which goods or services are sold directly to consumers or other businesses, and may, in appropriate instances to be determined by the commissioner, also include any other class of real property that is used for the conduct of any business, trade or profession; and (iv) "residential premises" means those portions of premises used predominantly for residential purposes, other than hotels, that abut the sidewalk and do not constitute commercial premises.

d. Within fifteen months after the effective date of this section, the commissioner shall submit to the mayor and the council a report on the results of the citywide enforcement routing system for the twelve month period commencing on the first day of the first full month after the effective date of this section.

 

[Michael Wechsler]

So here is the interesting issue - it says that the city has created two one hour periods to do sweeps of residential and commercial properties -- between 8-9AM and 6-7PM. What kind of utter nonsense is this? So what the city is saying is that you must have someone posted at the residence between 8 and 9 AM or you may get a summons for trash - even in the street. So if you own a home in New York City, I don't see any way that you can work anything other than a 10AM to 5PM job or else you may continue to pile up sanitation violations. I'll let you know what happens but this could get interesting.

PS - I'm not sure what rights I am afforded at a hearing with the ALJ, but I plan on sending an information subpoena to the Environmental Control Board to find out how many summonses they gave out on that day and for the past two months. Ridiculous.

 

[army judge]

New York, New York, used to be the city so nice; they named it twice.
I have fond memories of NYC.
I was stationed at Ft. Dix, NJ many years ago as a young kid.
Many fond memories of NYC, Central Park, Times Square, Broadway, Garment District, Meat Packing District, The Battery, The Bowery, Governor's Island (used to be a Coast Guard Installation), Statue of Liberty, CP Zoo, Park Avenue; man what a city.

Today, I'm afraid, its been infected by a very destructive virus that's killing our formerly great nation.

Everything is a scam or a con to steal money from the citizenry.

I hope you get it sorted, professor.

 

[Betty3]

Oh good grief! That is ridiculous. Keep us posted.

 

[disagreeable]

Based on a bit of research, you have no rights.

http://scholar.google.com/scholar_c...q=litter+sanitation+summons&hl=en&as_sdt=4,33

 

[Betty3]

Well, that link was encouraging - not!

 

[Michael Wechsler]

Thanks for the research - I don't necessarily disagree with you. For the most part, you can't fight City Hall even though something may be rife with contradiction. But my approach is three prong.

Regarding case law, the case you're citing - The People of the State of New York v. Clarence Eisen - is in criminal court. It made me wonder why someone would be accused of criminal conduct for a sanitation violation. I read through the text and tried to infer what the probable facts of the case were and this is what I found:

At the trial, the Department of Sanitation patrolman testified that he had observed great accumulations of debris, litter and garbage on the sidewalk abutting the property owned by the defendant, but conceded that he did not observe the defendant actually contribute to the accumulation.

The description of the testimony implies that the building owner may have known about great accumulations of garbage being thrown on the sidewalk but didn't take any measures to deal with the problem. We are talking about places where people walk - the public walkways - and a discussion of the public safety. The court may have used many words to reach a conclusion that the defendant isn't truly the right person to challenge what are vague words in the statute:

So long as the standards laid down by the Legislature in the penal provisions are capable of reasonable application to varying fact situations, no fault can be found with the statute.

While I'm of the opinion that the statute is most certainly vague and leaves interpretation to be arbitrary, it says that the statute is designed for "reasonable application". Perhaps in this case the court found that the land owner had a pretty good idea that there was a garbage problem. My distinction concerns both not knowing about the problem, not being able to know and also that it doesn't concern the sidewalk, which is a place where people walk, concerns public safety and is open and freely accessible. I won't address this courts unpersuasive explanation that "Of course we're not having someone waiting for a a bag of garbage to be thrown on your property so we can issue a sanitation violation because we're all reasonable people." They should have stuck with the testimony rather than delving in dicta. Here are my arguments regarding the summons we were issued - for trash in the street!

(1) The 18" in front of the sidewalk is almost always occupied by a parked car. On Mondays when there is no alternate side of the street parking, the vacancy would be momentary. It is impossible to expect any homeowner to be able to clean underneath motor vehicles or expect them to wait until a vehicle owner has left the parking space which is not within the control of the homeowner.

(2) The daily times for which New York City decided they would send out inspectors -- includes weekdays between 8AM and 9AM. As you can see above in section (3)(a):

The two one-hour predetermined periods for issuing notices of violation, appearance tickets or summonses for residential premises shall be from 8:00 a.m. until 9:00 a.m. and from 6:00 p.m. until 7:00 p.m.

So our wise officials decided to create jobs for sanitation workers to issue sanitation violations between the hours of 8AM and 9AM each day - during a time when they know that residents will already have left left to commute to work. If they wanted to issue tickets at 7PM alone, that might be justifiable but certainly not when New York City knows that the land owner will be absent.

(3) If the ALJ doesn't see things my way, which he or she may not, I plan to appeal this case to the highest court of the land -- the court of public opinion. I highly doubt that homeowners will be amused -- and I'm sure plenty will be out angrily waving $100 tickets and looking to leave with someone's scalp, lol.

 

[Betty3]

Everyone's case is different - you go for it, thelawprofessor. Good luck.

 

[Michael Wechsler]

Well, that link was encouraging - not!

The link is extremely well intended and most appreciated. The best result almost always requires maximum preparation.

 

[disagreeable]

I also suggest you use the fact you are not a resident, you are simply in charge of the property. How can you be there in time to thwart the tampon police and be at your own home to do the same. Further, if your right to due process is not being violated, why does the city not cite every resident in an apartment complex, when trash is discovered out front.

 

[Betty3]

The link is extremely well intended and most appreciated. The best result almost always requires maximum preparation.

Oh, I know it was well intended & I thought it was interesting to read. I was just saying it's not very encouraging for owners of property going to court against the city. Every case is different though & agree being well prepared can make a difference.

 

[Michael Wechsler]

I'm going to go into court tomorrow - but this New York Daily News article on sanitation tickets issued in New York that was published today could not have been any more timely in providing an explanation for the issuance of a bogus sanitation violation in our residential neighborhood. Someone must have looked at their quotas and I can only wonder whether the number of summonses issued changed in July.

Apparently a member of our New York City Council, Peter Vallone, took a stand against this issue as he was frustrated with the inability of our sanitation department to handle the problems effectively. He called their actions "trash backwards" - which is a hilarious but unfortunately accurate assessment of the issues.

 

[Betty3]

It couldn't have been any more timely!

 

[Michael Wechsler]

It couldn't have been any more timely!

Isn't it hilarious??!!!! According to the statistics, the New York City Department of Sanitation gave out less than two trash tickets a day in our borough for the first six months of 2013. Suddenly in the month following this report, our home gets a winning lottery sanitation violation for some cups and candy wrappers in the street! Or maybe the number of sanitation violations increased exponentially?

On the walk home from work I took pictures of some local garbage cans today just a few blocks away - all of which have the City Councilman's name on them - James E. Gennaro. (I rather enjoy the "Keep New York City Clean" message on every can.) The law here says that you can place the garbage out for pickup the night before the Tuesday morning pick up. Around every City Council trash can there are bags of garbage out during the day on Monday, which is about as clear a violation as you can get - although there is (and I think there should be) some understandable leeway given. I've already let City Councilman Peter Vallone know of what may be a harbinger of what is to come in our neighborhood. Will let you know how things go tomorrow morning with the ALJ.


The municipality park in violation of the New York City Sanitation ordinance.


Just two blocks from our home - a bit more than some candy wrappers and coffee cups in the street!

 

[mightymoose]

Sadly, off you come will prepared with a reasonable argument you may get a very quick dismissal of your citation while all the others remain on the hook and the problem continues.
I hope you might be able to trigger something with a lasting effect for the good of everyone.

 

[Michael Wechsler]

Moose - you hit the nail on the head regarding the case. While my appearance to fight and publicizing the issue might help our neighborhood for a time it will probably result in some other neighborhood being victimized by this ridiculous exercise and make its way round the city. Hoping that our city council will put a quick end to this joke during an election year.