In the Matter of ALBERT PRINCE, Appellant, v CITY OF NEW YORK, Respondent.
Supreme Court, Appellate Division, First Department, New York
May 21, 2013
[966 NYS2d 16]
Richter, J.
APPEARANCES OF COUNSEL
Michael A. Cardozo, Corporation Counsel, New York City (Janet L. Zaleon, Kristin M. Helmers and Ilyse Sisolak of counsel), for respondent.
RICHTER, J.
On February 23, 2011, petitioner Albert Prince removed a single television antenna from the top of some curbside garbage bags, placed it in his vehicle, and drove away. Shortly thereafter, the New York City sanitation police pulled Prince over, and issued him a summons for unauthorized removal of residential recyclable material using a motor vehicle (see
On the morning in question, a sanitation police lieutenant was patrolling in Brooklyn looking for individuals removing metal from recyclable trash placed out by homeowners. The lieutenant observed Prince take a television antenna made of recyclable metal, place it in his van, and drive away. Prince took the discarded antenna from the curb in front of a one- or two-family house, where it was resting on top of black garbage bags. Prince is a carpenter and sculptor who belongs to a group of artists who use recyclable construction material for art installations at the Brooklyn Art Exchange. Prince believed that the antenna was garbage and intended to use it in his artwork.
After Prince drove away, the lieutenant activated the lights and siren on his vehicle and pulled Prince‘s van over. He issued Prince a $2,000 notice of violation for “remov[ing] recyclable metal . . . from residential premise[s]” and placing it into his van, in violation of
Prince appealed the decision to the New York City Environmental Control Board (ECB) contending, inter alia, that the mandatory $2,000 penalty enforced by vehicle impoundment was an unconstitutionally excessive fine.2 By decision dated October 27, 2011, the ECB upheld the notice of violation and the $2,000 fine, concluding that it lacked the authority to rule on the constitutional issue. Prince then commenced the instant
The New York City Council enacted these provisions to provide harsher penalties for those who use motor vehicles to remove recyclable materials from the curbside. Previously, the maximum fine for violators was $100. The legislative history of the current law indicates that the City Council did not believe the $100 fine was a sufficient deterrent to those individuals who appropriate recyclables and sell them for financial gain (see Rep of Comm on Sanitation and Solid Waste Management, 2007 NY City Legis Ann at 318). The Council was concerned that trucks with out-of-state license plates were taking recyclables from curbsides the evening before the regular sanitation department pickup, thereby depriving the City of recycling revenue (id.).
Thus, the Council‘s intent in passing the statute was to prevent people from making “a quick profit [from] tak[ing] recyclable materials in large quantities” (id. at 320; see also Testimony of Todd Kuznitz, Sanitation Director of Enforcement, Hearing of Comm on Sanitation and Solid Waste Management, Int. No. 582-A, Sept. 25, 2007 at 12 [legislation aimed at those removing recyclables “for commercial purposes, for serious business reasons, and in great bulk“]; Statement in Support of Legislation Increasing Fines and Penalties for Rustlers of Recyclables, Natural Resources Defense Council, Inc., Hearing of Comm on Sanitation and Solid Waste Management, Int. No. 582-A, June 13, 2007 [“legislation is targeted at commercial enterprises that are stealing recyclables on a high-volume basis and in a business context“]). Indeed, at the City Council hearing on the proposed law, several Council members expressed concerns about the potential sweep of the proposed $2,000 fine, suggesting that such a penalty would be excessive if imposed on individuals taking items for personal use (Hearing of Comm on Sanitation and Solid Waste Management, Int. No. 582-A, Sept. 25, 2007 at 10-12). Despite these reservations, and the stated intent of the legislation, the statute, as enacted, applies broadly to individuals who take “any amount” of recyclable materials, no matter how small (
It is undisputed that Prince violated the relevant Administrative Code provision—he removed and transported a recyclable object using a motor vehicle. Nevertheless, under the specific circumstances here, we conclude that the mandatory $2,000 penalty amounts to an unconstitutionally excessive fine. The
We reject the City‘s contention that the Excessive Fines Clause does not apply to the civil penalty at issue here. The City points out that Bajakajian dealt with criminal forfeiture of property involved in the offense of failing to report more than $10,000 in currency when leaving the country. The City also notes that, although Austin and Canavan are civil cases, they involved forfeiture of property as the instrumentality of a crime. Thus, the City argues that because no criminal conduct took place here, the administrative penalty assessed is not subject to excessive fines jurisprudence.
The City too narrowly views the scope of the Excessive Fines Clause. Although
The relevant inquiry is not whether the fine arises in the civil or criminal context, but whether the fine constitutes punishment (see Austin, 509 US at 610 [“The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law“] [internal quotation marks omit-ted]).
The statute‘s requirement of a mandatory $2,000 fine cannot fairly be viewed as solely remedial. This sizeable sanction is assessed regardless of the amount, or value, of the recyclable materials taken, and bears no relationship to the actual loss sustained by the City as a result of the violation (see Bajakajian, 524 US at 329 [forfeiture did not serve the remedial purpose of compensating the government for a loss]; Towers v City of Chicago, 173 F3d at 624 [civil fines at issue serve little or no remedial purpose because they do not compensate the City for any loss sustained as a result of the violations]). Particularly where the value of the item taken is minimal, the $2,000 fine undeniably has a punitive element.
The legislative history of the statute makes clear that the $2,000 fine was established to serve as a deterrent. The September 25, 2007 Report of the City Council‘s Committee on Sanitation and Solid Waste Management (the Committee) explained that the fine was being increased to $2,000 because the previous fine of $100 “does not seem to have deterred the efforts of those wishing to take [recyclable materials] for their own financial gain” (2007 NY City Legis Ann at 318). In written testimony submitted to the Committee, John Doherty, Commissioner of the Department of Sanitation, stated that “increasing the fines for this violation will deter individuals from interfering with the Department‘s recycling collection operations” (Testimony of John J. Doherty, Sanitation Commissioner, Hearing of Comm on Sanitation and Solid Waste Management, Int. No. 582-A, Sept. 25, 2007 at 2). Indeed, the City‘s brief on appeal repeatedly points out that the increased penalties were enacted to deter violators. Because the fine here, at least in part, serves a deterrent purpose, it cannot be considered solely remedial and thus is subject to
This Court‘s decision in OTR Media Group, Inc. v City of New York (83 AD3d 451 [1st Dept 2011]) involves a different type of statutory scheme. In OTR, the plaintiff challenged the fine schedule for violating regulations restricting outdoor advertising signs situated within view of arterial highways and public parks. In rejecting the constitutional excessive fine claim, we found that the sanctions there served only a remedial purpose. The regulations at issue in OTR did not entirely bar outdoor advertising, but simply required that when signs were erected, they complied with zoning regulations. Here, in contrast, the Administrative Code provision constitutes a complete bar to removing recyclable materials, making the fines punitive, not remedial.
Having concluded that the sanction here falls within reach of the Excessive Fines Clause, we now turn to whether it is “grossly disproportional” to the gravity of Prince‘s offense (Bajakajian, 524 US at 334). “The touchstone of [this] constitutional inquiry . . . is the principle of proportionality: The amount of the [fine] must bear some relationship to the gravity of the offense that it is designed to punish” (id.). In determining gross disproportionality, a court should consider the seriousness of the offense, the severity of the harm caused and the potential harm had the defendant not been apprehended, the maximum fine to which the defendant could have been subject, and the defendant‘s economic circumstances (Canavan, 1 NY3d at 140).
Applying these factors, we find that the imposition of a $2,000 fine for removal of a discarded television antenna from the garbage is grossly disproportional to the offense charged. The seriousness of the offense is relatively minor, as it involves taking a single piece of metal, abandoned by its owner, which likely had little value to the City.5 There was no significant harm caused by Prince‘s conduct, and certainly no potential harm to
the owner of the antenna,
To the extent Prince contends that the impoundment of his van also constitutes an excessive fine, that issue is moot. Although the protracted loss of a vehicle for someone who, like Prince, is unable to pay the fine could raise excessive fine implications, we need not reach that issue because the vehicle has been returned to him. We reject Prince‘s due process claim seeking return of the $500 storage fee paid to release his vehicle. Prince had the right to request an earlier hearing (see
Accordingly, the judgment of the Supreme Court, New York County (Cynthia Kern, J.), entered March 9, 2012, denying the petition to annul the New York City Environmental Control Board‘s decision, dated October 27, 2011, should be modified, on the law, to grant the petition to the extent of vacating the $2,000 fine, and otherwise affirmed, without costs.
GONZALEZ, P.J., TOM and SWEENY, JJ., concur.
Judgment, Supreme Court, New York County, entered March 9, 2012, modified, on the law, to grant the petition to the extent of vacating the $2,000 fine, and otherwise affirmed, without costs.