The ongoing Covid-19 pandemic and economic fallout have caused significant distress and harm on small businesses throughout New York City. An estimated 30 percent of NYC small businesses have permanently closed due to the pandemic with many still on life support. Hospitality, tourism, entertainment, gyms, and salons have been hit especially hard. Despite the hardship, NYC continued to enforce most regulations placing high fines on businesses when they cannot afford the additional strain. The City Council is seeking to offer much needed relief from regulatory burdens imposed on small businesses throughout NYC. Council members Vanessa L. Gibson, Mark Gjonaj (Chair of the Committee on Small Business), Robert F. Holden, Diana Ayala, as well as Speaker Corey D. Johnson sponsored a package which;
“would provide civil penalty relief for small businesses from certain sanitation, health, transportation, consumer affairs, noise control and building violations. It would set fixed penalties at the bottom of existing penalty ranges, lower existing penalty ceilings (or sometimes set a lower fixed amount), or lower existing fixed penalties. The bill would allow a cure period for a first violation, or it would eliminate the civil penalty and require a warning for a first violation. For some sanitation violations, where the bill would eliminate the first violation civil penalty, a cure period would be allowed for a second violation. This bill would also reform the consumer affairs notice of violation process; repeal licensing requirements for amusement devices, arcades and gaming cafes and laundries; and repeal the prohibition on bingo after 6:00 p.m. on Sunday. The bill would allow electric pedal-assist motors for pedicabs.”
As the Council examines a variety of regulations to temporarily reduce or suspend fines, the reconciliation of the New York City Department of Transportation’s (DOT) marking laws with that of the state and federal departments of transportations would be a boon to the trucking industry and would not compromise safety in the least.
Under current federal and state law, commercial trucks must be marked on both sides of the vehicle with the legal business name or DBA as it appears on their USDOT registrations. The lettering must be written in a color that contrasts with the background color of the vehicle and it must be visible from a minimum distance of 50 feet. However, NYC Traffic Rules (4-01(b)(3)(i)(c)) mandates an additional requirement that commercial trucks include their full address in characters at least three inches high on both sides of the vehicle, with such display being in a color contrasting with that of the vehicle and placed approximately midway vertically on doors or side panels. If the vehicle is not marked in this manner, it is deemed an “unaltered vehicle” and would not be in compliance with NYC laws for purposes of commercial vehicle parking. This subjects the company to the stacking of tickets for not having an altered motor vehicle as well as being in violation if that vehicle is parked in a commercial loading zone. Frankly, this is a way for NYC to circumvent specific defenses carved out for trucks such as double parking, subjecting them to double and triple fines. This has become particularly onerous now because many on-street parking areas taken by off-street dining.
Further, an exception for this NYC marking requirement exists for vehicles which display widely recognized “logo”-type markings such as UPS, Federal Express, Ryder and other nationally known companies. This is truly a small-business specific burden.
Also, many companies do not operate solely within the confines of New York City and are often not aware of this unique marking requirement until such time they receive a ticket, even though they are otherwise in compliance with both state and federal regulations. Requiring these companies to pull their trucks out of operation to add additional markings is a tremendous administrative and financial burden. There is no need for the street address to be marked on the vehicle as it is easily accessible by looking up the USDOT number or the vehicle registration information.
Another truck related issue that the City Council should look into is, the Department of Environmental Protection’s (DEP) citizen complaint engine idling summonses pursuant to section 24-163 of the City’s Administrative Code. These are summonses issued by DEP after a private individual videos a vehicle with the engine idling for more than 3 minutes. The citizen sends proof to DEP, and DEP sends out a summons. If the City collects the fine, the citizen gets 25%. Aside from the financial reward to private parties for reporting on small businesses, there are many problems in the administration of this program. Often the summonses are served 6 months to a year after the violation date. It’s difficult for the respondent to get proof and defend itself. Also, DEP is simply serving many summonses by just dropping them off at the NYS Secretary of State. Many respondents are not getting the summonses. Each summons has a face value “default” fine of $1,000 for the first violation. The summons says the respondent may be entitled to a stipulated reduction in an amount which is not stated, which offer would have to first be mailed to the respondent separately by the DEP. The notice says that if they want to take the settlement, payment will have to be received before the hearing date.
So, if a respondent wants to just “settle” the case, it has to wait and see if they get an offer, via a separate mailing from DEP. If they do not get it, they must attend the hearing at OATH. If the respondent requests a new hearing date, they are not eligible for the settlement, even if they do not know what the settlement offer may be. Many respondents now frantically call DEP and OATH, where the hearings are held, to see if they can simply settle. If one misses the hearing because they did not get the notice or for other reasons, the default rate appearing on the summons becomes the judgment amount.
To OATH’s and DEP’s credit, if one attends the hearing and loses unless there are prior violations, the fine is the same as the settlement amount, $350. This is highly inefficient and leads to many being stuck at a $1,000 fine instead of the typical stipulated settlement which, by the way, is $350. Here are some suggestions which might make the process more equitable:
- Summons must have a “mail-in penalty” of “settlement” figure section instead of a vague representation that there might be a settlement.
- OATH must be required to post the settlement amount on its web fine payment page at least a few days before the scheduled hearing date.
- The settlement should be automatically offered when one goes to the hearing or requests the hearing link.
- The settlement amount must be left open at least to the date of any rescheduled hearing or for 60 days after the mailing of a default notice.
We applaud the sponsors for taking this necessary step. The future of small businesses in NYC is at stake and reducing regulatory burdens could mean survival or extinction.