New York City Citizen’s Idling Complaint
INTRODUCTION
INTRODUCTION
New York City allows its citizens to file complaints against companies that allow their vehicles to idle for more than 3 minutes or 1 minute adjacent to a school. The citizen will receive 25% of the penalty if the case is successfully prosecuted. These complaints are NOT a part of the CITY’S 311 COMPLAINT SYSTEM.
To learn more about how to file a citizen’s idling complaint, you can read the NYC Department of Environmental Protection’s AIR COMPLAINT PROGRAM’S FREQUENTLY ASKED QUESTIONS.
CREATING A PROFILE ON DEP’S COMPLAINT PORTAL
To file a citizen idling complaint you have to set up an account on the NYC DEP COMPLIANT IDLING PORTAL. Once you have an account, you can sign in and file a citizen’s complaint online. The website allows you to track the progress of your complaint to see it’s status to see if the case is denied or a summons is issued.
HOW TO FILE A WINNING COMPLAINT
However, it is one thing to catch an idler and file a case. But the ultimate goal is to win the case so that these companies will educate their drivers about the idling laws.
Our NYC IDLING TUTORIAL VIDEO SERIES on YouTube, we will teach you all of the tips and tricks that we have learned from successfully filing idling complaints and talking to other idle warriors. You should also subscribe to our NYC IDLE WARRIORS google group to ask us question directly and share your adventures with other Idle Warriors. You can also email your questions to INFO@EVOLV-ELECTRIC.ORG with “Idling Question” in the subject line.
Recording a Proper Idling Video
One of the most important aspects of filing a successful case is to capture a good video that will have all the elements needed to prove your case. We recommend you watch our IDLING TRUCKS VIDEO SERIES to see examples of good and a few not so great videos that we or others have taken. The application I use to record my time and date stamped video is called TIMESTAMP CAMERA and is free. The link will give you links to download both an Apple and Android edition.
Writing a Successful Complaint
There is an art to writing a successful complaint and we are here to help. Check out our ANATOMY OF A COMPLAINT HANDOUT, which also includes a dissected complaint and two examples of complaints that were successful. If you follow our template you have all of the information to make out a prima facie violation.
How to Identify the Proper Owner
Many of the vehicles you will record will not have the full address or even the proper name of the company on the side of the vehicle. There are two main ways to make sure that you have the proper address and name of the owner or operator of the vehicle.
If the vehicle has a US Department of Transportation number you can search it on the SAFETY AND FITNESS ELECTRONIC RECORDS (SAFER) SYSTEM. Searching the US DOT number will always get you the legal name of the entity that owns the vehicle.
If the owner of the vehicle is licensed to operate in New York State they are required to register under their legal name and provide an address for service with the NEW YORK STATE DEPARTMENT OF CORPORATIONS. You don’t have to know the full name of the corporation to search the Dept. of Corporations website.
You also will have to be able to clearly identify where the vehicle was idling. Usually, the timestamp app gives you a good location. However, there are times when the GPS will be thrown off by all of the buildings and other digital noise. I always check the address on GOOGLE MAPS and sometimes even cut and paste the map into the complaint form to better identify where the vehicle was idling.
HOW TO TRACK YOUR SUMMONS
Once the DEP has issued a summons to the alleged idling you can check the status of your case on the web portal or by visiting the Office of Administrative Trial and Hearings SUMMONS FINDER.
HOW APPEALS WORK
As a citizen complaint you have no right to appeal a decision made by OATH. DEP is the petitioner and the company that receives the summons is the Respondent. Although you may be called as a witness, you are officially not a party to the case.
However, if you filing was denied by DEP and you wrote the summons yourself, you may appeal the case also.
If the losing party chooses to appeal, they have 30 days from the date of the decision to alert OATH and the other party that they plan on appealing the decision. If they are the Respondent, they also have to pay the fine before your appeal will be accepted. This does not entitle the citizen complainant to receive any payments because the cases are not considered closed at this time.
OATH will then email an audio transcript of the hearing to the appellant (the party that initiated the appeal) and they have 30 days to file their arguments with OATH’s appeals unit and the appellee. If the appellant fails to file the papers on time, they automatically lose the appeal.
The appellee then has 30 days to file their response with OATH and appellant. This time may be extended if the appellee also requests the audio recording of the hearing. If the appellee does not respond, the appeals unit will still render a decision based on the hearing officer’s decision and the appellant’s filing.
OATH will not accept any new arguments or evidence that was not presented at the original hearing before the hearing officer. OATH usually renders a decision within 60 days of receiving all the appeal documents.
New York Law School’s Center for New York City Law has set up a website where you can search for OATH APPEALS DECISIONS.
If one wants to challenge the appeals unit’s decision, they will have to file an article 78 motion in the New York Supreme Court?
HOW ARE THE PENALTIES CALCULATED?
For every violation that a city agency issues there is a penalty schedule that states what the penalty is for a given violation. When the NY City Council passes a new law they will general say what level of criminality that violation is and that will determine the minimum and maximum that may be charged for an infraction. Under administrative code section 24-178, the minimum penalty is $350 and a maximum of $2,000.
The issuing agency will then determine how much to charge for a single violation, whether multiple violations will result in increased fines, if there is a way to mitigate the fine amount and what the default penalty would be. The full air code penalty schedule for the anti-idling law and other violations can be found in the administrative code section 3-102. *Unfortunately, that link is the old penalty schedule where the base penalty was $300. If you know of a link to the current penalty schedule please send me an email. In the DEP code it just says the penalties will range from $350 to $2,000.
I have made a CHART OF THE PENALTY SCHEDULE and the corresponding amount of the civilian compensation for the anti-idling violations.
Previously, the civilian compensation was 25% of the total fine collected by OATH, which could include interest payments. Recently, one of our NYC Idle Warriors got an email from one of the people who process the civilian compensation requests saying that OATH would only being paying 25% of the base penalty and not include any of the interest charges. It is unknown what prompted this change but it does not seem to be a proper interpretation of the statute. The pertinent section clearly reads “the office of administrative trials and hearings pursuant to section 1049-a of the charter shall award the complainant, out of the proceeds collected, twenty-five percent of such proceeds, for disclosure of information or evidence, not in the possession of the department prior to the receipt of the complaint by the department, which leads to the imposition of the civil penalty.”
HOW TO GET PAID
After the summons has been successfully adjudicated and the penalty paid, you will have to send an email to PENALTYPROCESSING@OATH.NYC.GOV in order to receive your portion of the penalty.
I have been informed that OATH will only be processing your emails for payments on Thursdays and Fridays. I don’t think this will affect when you can send them emails for payment requests. It should only affect when they submit the requests to the NYC Comptroller’s Office for approval. You should expect to receive payment about 8-10 weeks after the Friday that you submitted your email to OATH.
Here is a TEMPLATE OF THE PAYMENT REQUEST EMAIL that I send to OATH in order to get paid. I also attach a PDF of the VIOLATION PAID STATUS from OATH’s website and the DEP SUMMONS CONFIRMATION EMAIL showing that I am the person that filed the complaint.
HOW TO GET A COPY OF YOUR DECISION
As the complainant, you do not get a copy of the OATH decisions. As far as the legal proceeding is concerned DEP is the issuing agency and the trucking company is the respondent. Those are the only parties that OATH will issue a copy of the decision to after the hearing.
However, the decision is a public record and anyone who wants a copy of the decision can request one from OATH due to ARTICLE 6 OF THE NEW YORK STATE PUBLIC OFFICERS LAW, also known as the Freedom of Information Law (FOIL) or Act (FOIA). All FOIL requests for any city agency can be requested electronically through the NYC OPEN RECORDS portal. (Quick Tip: the first box on the form is a list of categories to find the agency to submit the request, if you choose PUBLIC SAFETY, OATH will be the last selection on a smaller list of choices.)
Here is a direct link of OATH’s website to REQUEST A DECISION.
The documents will be free if you provide a valid email address that they can deliver to. If you need the physical documents mailed to you, you will be charged $0.25 per page.