§ 1209-A — Transit adjudication bureau

§ 1209-a. Transit adjudication bureau. 1. Establishment. There is\nhereby created in the authority a transit adjudication bureau. The head\nof such bureau shall be the executive director, who shall be appointed\nby the president of the authority. The executive director may delegate\nthe powers and duties conferred upon the executive director by this\nsection to such qualified officers and employees of the bureau as he may\ndesignate.\n 2. Hearing officers. The president of the authority shall appoint\nhearing officers who shall preside at hearings for the adjudication of\ncharges of transit or railroad infractions, as hereinafter defined and\nthe adjudication of allegations of liability for violations of the rules\nand regulations of the triborough bridge and tunnel authority in\naccordance with section two thousand nine hundred eighty-five of this\nchapter, and who, as provided below, may be designated to serve on the\nappeals board of the bureau. Every hearing officer shall have been\nadmitted to the practice of law in this state for a period of at least\nthree years, and shall be compensated for their services on a per diem\nbasis determined by the bureau.\n 3. Jurisdiction. The bureau shall have, with respect to acts or\nincidents in or on the transit or railroad facilities of the authority\nor the metropolitan transportation authority or a subsidiary thereof\ncommitted by or involving persons who are sixteen years of age or over,\nand with respect to violation of toll collection regulations of the\ntriborough bridge and tunnel authority as described in section\ntwenty-nine hundred eighty-five of this chapter, non-exclusive\njurisdiction over violations of: (a) the rules which may from time to\ntime be established by the authority under subdivision five-a of section\ntwelve hundred four of this chapter; (b) article one hundred thirty-nine\nof the health code of the city of New York, as it may be amended from\ntime to time, relating to public transportation facilities; (c) article\nfour of the noise control code of the city of New York, as it may be\namended from time to time, insofar as it pertains to sound reproduction\ndevices; (d) the rules and regulations which may from time to time be\nestablished by the triborough bridge and tunnel authority in accordance\nwith the provisions of section twenty-nine hundred eighty-five of this\nchapter; and (e) rules and regulations which may from time to time be\nestablished by the metropolitan transportation authority or a subsidiary\nthereof in accordance with the provisions of section twelve hundred\nsixty-six of this chapter. Matters within the jurisdiction of the bureau\nexcept violations of the rules and regulations of the triborough bridge\nand tunnel authority shall be known for purposes of this section as\ntransit or railroad infractions, as applicable. Nothing herein shall be\nconstrued to divest jurisdiction from any court now having jurisdiction\nover any criminal charge or traffic infraction relating to any act\ncommitted in a transit or toll facility, or to impair the ability of a\npolice officer to conduct a lawful search of a person in a transit or\nrailroad facility. The criminal court of the city of New York shall\ncontinue to have jurisdiction over any criminal charge or traffic\ninfraction brought for violation of the rules of the authority, the\ntriborough bridge and tunnel authority or the metropolitan\ntransportation authority or a subsidiary thereof, as well as\njurisdiction relating to any act which may constitute a crime or an\noffense under any law of the state of New York or any municipality or\npolitical subdivision thereof and which may also constitute a violation\nof such rules. The bureau shall have concurrent jurisdiction with the\nenvironmental control board and the administrative tribunal of the\ndepartment of health over the aforesaid provisions of the health code\nand noise control code of the city of New York.\n 4. General powers. The bureau shall have the following functions,\npowers and duties:\n a. To accept pleas (whether made in person or by mail) to, and to hear\nand determine, charges of transit and railroad infractions and\nallegations of civil liability pursuant to section two thousand nine\nhundred eighty-five of this chapter within its jurisdiction;\n b. To impose civil penalties and to issue warnings for any transit or\nrailroad infraction within its jurisdiction, in accordance with a\npenalty schedule established by the authority or the metropolitan\ntransportation authority or a subsidiary thereof, as applicable, and the\nconditions set forth in subdivisions eleven and twelve of this section\nand subdivision four of section twelve hundred sixty-six of this\narticle, except that penalties for violations of the health code of the\ncity of New York shall be in accordance with the penalties established\nfor such violations by the board of health of the city of New York, and\npenalties for violations of the noise code of the city of New York shall\nbe in accordance with the penalties established for such violations by\nlaw, and civil penalties for violations of the rules and regulations of\nthe triborough bridge and tunnel authority shall be in accordance with\nthe penalties established for such violations by section twenty-nine\nhundred eighty-five of this chapter;\n c. In its sole discretion, to suspend or forgive penalties or any\nportion of penalties imposed on the condition that the respondent\nvoluntarily agrees to perform and actually does satisfactorily perform\nunpaid services on transit or railroad facilities as assigned by the\nauthority, such as, without limitation, cleaning of rolling stock;\n d. To adopt, amend and rescind rules and regulations not inconsistent\nwith any applicable provision of law to carry out the purposes of this\nsection, including but not limited to rules and regulations prescribing\nthe internal procedures and organization of the bureau, the manner and\ntime of entering pleas, the conduct of hearings, and the amount and\nmanner of payment of penalties;\n e. To enter judgments and enforce them, without court proceedings, in\nthe same manner as the enforcement of money judgments in civil actions,\nas provided below;\n f. To compile and maintain complete and accurate records relating to\nall warnings, charges and dispositions, which records shall be deemed\nexempt from disclosure under the freedom of information law as records\ncompiled for law enforcement purposes, and provided that, in the absence\nof an additional violation, records of a warning issued to an individual\nin accordance with paragraph a of subdivision eleven of this section\nshall be sealed or expunged as of the date that is four years after the\ndate that such warning was issued;\n g. To apply to a court of competent jurisdiction for enforcement of\nany decision or order issued by such bureau or of any subpoena issued by\na hearing officer as provided in paragraph d of subdivision seven of\nthis section;\n h. To enter into contracts with other government agencies, with\nprivate organizations, or with individuals to undertake on its behalf\nsuch functions as data processing, debt collections, mailing, and\ngeneral administration, as the executive director deems appropriate,\nexcept that the conduct by hearing officers of hearings and of appeals\nmay not be performed by outside contractors, and that biometric\nidentifying technology, including but not limited to facial recognition\ntechnology, may not be used or arranged for use by outside contractors\nto enforce or process transit and railroad infractions relating to the\npayment of fares;\n i. To accept payment of penalties and to remit same to the authority\nor the metropolitan transportation authority or a subsidiary thereof, as\napplicable; and\n j. To adjudicate the liability of motor vehicle owners for violations\nof rules and regulations established in accordance with the provisions\nof section two thousand nine hundred eighty-five of this chapter.\n 5. Notices of violation. The bureau shall prepare and distribute\nnotices of violation in blank to the transit police and any other person\nempowered by law, rule and regulation to serve such notices. The form\nand wording of the notice of violation shall be prescribed by the\nexecutive director, and it may be the same as any other notice of\nviolation or summons form already in use if said form meets the\nrequirements hereof. The notice of violation may include provisions to\nrecord information which will facilitate the identification and location\nof respondents, including but not limited to name, address, telephone\nnumbers, date of birth, social security number if otherwise permitted by\nlaw, place of employment or school, and name and address of parents or\nguardian if a minor. Notices of violation shall be issued only to\npersons who are sixteen years of age or over, and shall be served by\ndelivering the notice within the state to the person to be served. A\ncopy of each notice of violation served hereunder shall be filed and\nretained by said bureau, and shall be deemed a record kept in the\nordinary course of business, and, if sworn to or affirmed, shall be\nprima facie evidence of the facts contained therein. Said notice of\nviolation shall contain information advising the person charged of the\nmanner and the time within which such person may either admit or deny\nthe offense charged in the notice. Such notice of violation shall also\ncontain a warning to advise the person charged that failure to plead in\nthe manner and within the time stated in the notice may result in a\ndefault decision and order being entered against such person, and the\nimposition of supplemental penalties as provided in subdivision five-a\nof section twelve hundred four or subdivision four of section twelve\nhundred sixty-six of this chapter. A notice of violation shall not be\ndeemed to be a notice of liability issued pursuant to section two\nthousand nine hundred eighty-five of this chapter.\n 6. Defaults. Where a respondent has failed to plead to a notice of\nviolation or to a notice of liability issued pursuant to section two\nthousand nine hundred eighty-five of this chapter within the time\nallowed by the rules of said bureau or has failed to appear on a\ndesignated hearing date or a subsequent date following an adjournment,\nsuch failure to plead or appear shall be deemed, for all purposes, to be\nan admission of liability and shall be grounds for rendering a default\ndecision and order imposing a penalty in such amount as may be\nprescribed by the authority or the metropolitan transportation authority\nor a subsidiary thereof.\n 7. Hearings. a. (1) A person charged with a transit or railroad\ninfraction returnable to the bureau or a person alleged to be liable in\naccordance with the provisions of section two thousand nine hundred\neighty-five of this chapter who contests such allegation shall be\nadvised of the date on or by which such person must appear to answer the\ncharge at a hearing. Notification of such hearing date shall be given\neither in the notice of violation or in a form, the content of which\nshall be prescribed by the executive director or in a manner prescribed\nin section two thousand nine hundred eighty-five of this chapter. Any\nsuch notification shall contain a warning to advise the person charged\nthat failure to appear on or by the date designated, or any subsequent\nrescheduled or adjourned date, shall be deemed for all purposes, an\nadmission of liability, and that a default judgment may be rendered and\npenalties may be imposed. Where notification is given in a manner other\nthan in the notice of violation, the bureau shall deliver such notice to\nthe person charged, either personally or by registered or certified\nmail.\n (2) Whenever a person charged with a transit or railroad infraction or\nalleged to be liable in accordance with the provisions of section two\nthousand nine hundred eighty-five of this chapter returnable to the\nbureau requests an alternate hearing date and is not then in default as\ndefined in subdivision six of this section, the bureau shall advise such\nperson personally, or by registered or certified mail, of the alternate\nhearing date on or by which such person must appear to answer the charge\nor allegation at a hearing. The form and content of such notice of\nhearing shall be prescribed by the executive director, and shall contain\na warning to advise the person charged or alleged to be liable that\nfailure to appear on or by the alternate designated hearing date, or any\nsubsequent rescheduled or adjourned date, shall be deemed for all\npurposes an admission of liability, and that a default judgment may be\nrendered and penalties may be imposed.\n (3) Whenever a person charged with a transit or railroad infraction or\nalleged to be liable in accordance with the provisions of section two\nthousand nine hundred eighty-five of this chapter returnable to the\nbureau appears at a hearing and obtains an adjournment of the hearing\npursuant to the rules of the bureau, the bureau shall advise such person\npersonally, or by registered or certified mail, of the adjourned date on\nwhich such person must appear to answer the charge or allegation at a\ncontinued hearing. The form and content of such notice of a continued\nhearing shall be prescribed by the executive director, and shall contain\na warning to advise the person charged or alleged to be liable that\nfailure to appear on the adjourned hearing date shall be deemed for all\npurposes an admission of liability, and that a default judgment may be\nrendered and penalties may be imposed.\n b. Every hearing for the adjudication of a charge of a transit or\nrailroad infraction or an allegation of liability under section two\nthousand nine hundred eighty-five of this chapter hereunder shall be\nheld before a hearing officer in accordance with the rules and\nregulations promulgated by the bureau.\n c. The hearing officer shall not be bound by the rules of evidence in\nthe conduct of the hearing, except rules relating to privileged\ncommunications.\n d. The hearing officer may, in their discretion, or at the request of\nthe person charged or alleged to be liable on a showing of good cause\nand need therefor, issue subpoenas to compel the appearance of any\nperson to give testimony, and issue subpoenas duces tecum to compel the\nproduction for examination or introduction into evidence of any book,\npaper or other thing relevant to the charges.\n e. In the case of a refusal to obey a subpoena, the bureau may make\napplication to the supreme court pursuant to section twenty-three\nhundred eight of the civil practice law and rules, for an order\nrequiring such appearance, testimony or production of materials.\n f. The bureau shall make and maintain a sound recording or other\nrecord of every hearing.\n g. After due consideration of the evidence and arguments, the hearing\nofficer shall determine whether the charges or allegations have been\nestablished. No charge may be established except upon proof by clear and\nconvincing evidence except allegations of civil liability for violations\nof triborough bridge and tunnel authority rules and regulations will be\nestablished in accordance with the provisions of section two thousand\nnine hundred eighty-five of this chapter. Where the charges have not\nbeen established, an order dismissing the charges or allegations shall\nbe entered. Where a determination is made that a charge or allegation\nhas been established or if an answer admitting the charge or allegation\nhas been received, the hearing officer shall set a penalty in accordance\nwith the penalty schedule established by the authority or the\nmetropolitan transportation authority or its subsidiaries, or for\nallegations of civil liability in accordance with the provisions of\nsection two thousand nine hundred eighty-five of this chapter and an\nappropriate order shall be entered in the records of the bureau. The\nrespondent shall be given notice of such entry in person or by certified\nmail. This order shall constitute the final determination of the hearing\nofficer, and for purposes of review it shall be deemed to incorporate\nany intermediate determinations made by said officer in the course of\nthe proceeding. When no appeal is filed this order shall be the final\norder of the bureau.\n 8. Administrative and judicial review. a. There shall be appeals\nboards within the bureau which shall consist of three or more hearing\nofficers, as the executive director shall determine. The executive\ndirector shall select a chairman for each appeals board from the members\nso appointed. No hearing officer may sit on an appeals board\nconsidering an appeal from a determination made by said hearing officer.\n b. A party aggrieved by a final determination of a hearing officer may\nobtain a review thereof by serving upon the bureau, within thirty days\nof the bureau's service of its notice of entry of such order a notice of\nappeal setting forth the reasons why the determination should be\nreversed or modified. There shall be no interlocutory appeals.\n c. An appeal from a final determination of a hearing officer shall be\nsubmitted to the appeals board, which shall have power to review the\nfacts and the law, but shall not consider any evidence which was not\npresented to the hearing officer, and shall have power to reverse or\nmodify any judgment appealed from for error of fact or law.\n d. Appeals shall be made without the appearance of the appellant and\nappellant's attorney unless the presence of either or both are requested\nby the appellant, appellant's attorney, appellant's parent or guardian\nif appellant is a minor, or the appeals board. Within twenty days after\na request for an appearance, made by or for the appellant, appellant's\nattorney or the board, the bureau shall advise the appellant, either\npersonally or by registered or certified mail, of the date on which he\nor she shall appear. The appellant shall be notified in writing of the\ndecision of the appeals board.\n e. A party may request and obtain a record of the proceedings\nresulting in a determination for which an appeal is sought, but the\nparty shall pay to the bureau the cost of providing such record. When a\nrecord is timely requested for the purpose of preparing an appeal, the\nbureau shall not thereafter cause the appeal to be heard or submitted\nless than ten days after the delivery or mailing of the record to\nappellant or appellant's attorney.\n f. The service of a notice of appeal shall not stay the enforcement of\nan order appealed from unless the appellant shall have posted a bond in,\nor shall have paid, the amount of penalties imposed in the order\nappealed from within the time period established by rule of the bureau\nfor payment of penalties following entry of such an order.\n g. No determination of a hearing officer which is appealable under the\nprovisions of this section shall be reviewed in any court unless an\nappeal has been filed and determined in accordance with this\nsubdivision. When an appeal has been filed, the order of the appeals\nboard shall be the final order of the bureau. Judicial review may be\nsought pursuant to article seventy-eight of the civil practice law and\nrules.\n 9. Enforcement of judgments. a. The bureau shall have the power to\nenforce its final decisions and orders imposing civil penalties for\nviolations of laws, rules and regulations enforced by it as if they were\nmoney judgments, without court proceedings, in the manner described\nherein.\n b. Any final order of the bureau imposing a civil penalty, whether the\nadjudication was had by hearing or upon default or otherwise, shall\nconstitute a judgment rendered by the bureau which may be entered in the\ncivil court of the city of New York or any other place provided for the\nentry of civil judgments within the state, and, provided that no\nproceeding for judicial review shall then be pending, may be enforced\nwithout court proceedings in the same manner as the enforcement of money\njudgments entered in civil actions. A final order against any person or\npersons shall be a bar to the criminal prosecution of, and in the case\nof a minor, juvenile offender proceedings against, said person or\npersons for conduct upon which the order was based.\n c. Notwithstanding the foregoing provisions: (1) Before a judgment\nbased upon a default may be so entered the bureau must have attempted to\nnotify the respondent by first class mail, in such form as the bureau\nmay direct: (i) of the default decision and order and the penalty\nimposed; (ii) that a judgment will be entered in the civil court of the\ncity of New York or any other place provided for the entry of civil\njudgments within the state; and (iii) the entry of such judgments may be\navoided by requesting a stay of default for good cause shown and either\nrequesting a hearing or entering a plea pursuant to the rules of the\nbureau within thirty days of the mailing of such notice.\n (2) Upon receipt by the bureau of a copy of an order to show cause in\nlieu of a notice of petition, or of a notice of petition, served upon it\nin a proceeding for judicial review of any final order of the bureau\nwhich constitutes a judgment which may be entered in the civil court of\nthe city of New York or any other place provided for the entry of civil\njudgments within the state, the bureau shall forthwith serve by\nfirst-class mail the attorney for the petitioner in such proceeding, or\nif the petitioner has initiated the proceeding pro se, the petitioner,\nwith a notice stating whether or not a judgment was entered in any such\ncourt or other place provided for the entry of civil judgments within\nthe state prior to the pendency of such proceeding for judicial review.\nIf a judgment was so entered, such notice from the bureau also shall\ncontain: (i) the name and address of the court or other place in which\nthe judgment was entered, and (ii) identification of the judgment book,\nindex number, docket number, date of entry, other information or\ncombination of the foregoing, sufficient for the petitioner's attorney\nin such proceeding, or for the petitioner pro se, to locate such entry\nof judgment according to the indexing system utilized by the court or\nother place in which the judgment was entered. Proof of service of such\nnotice from the bureau shall be filed by the bureau with the court in\nwhich the proceeding for judicial review is pending at the same time as\nthe filing with the court of the bureau's first legal papers in such\nproceeding. The court in which the proceeding for judicial review is\npending shall not accept for filing the bureau's first legal papers in\nsuch proceeding unless such legal papers are accompanied by such proof\nof service.\n 10. Funds. All penalties collected pursuant to the provisions of this\nsection shall be paid to the authority to the credit of a transit crime\nfund which the authority shall establish. Any sums in this fund shall be\nused to pay for programs selected by the board of the metropolitan\ntransportation authority, in its discretion, to reduce the incidence of\ncrimes and infractions on transit and railroad facilities, or to improve\nthe enforcement of laws against such crimes and infractions. Such funds\nshall be in addition to and not in substitution for any funds provided\nby the state or any political subdivision within the metropolitan\ncommuter transportation district as established by section twelve\nhundred sixty-two of this article for such purposes.\n 11. Civil penalties relating to payment of transit fare violations.\nCivil penalties imposed by the bureau in connection with a violation by\na respondent of the rules of the authority or the MTA bus company\nrelating to the payment of fares shall adhere to the following\nconditions:\n a. A violation that is the first such violation by a respondent\ncommitted in any four year period shall, absent exceptional\ncircumstances including a concurrent violation or violations by such\nindividual of the penal law or the rules of conduct of the New York city\ntransit authority or the MTA bus company which causes or may tend to\ncause harm to oneself or to any other person, or to the safe operation\nof the transit system, be punishable only by an official written warning\nissued according to and governed by the rules of the authority in all\nrespects; provided that such warning shall not be used for any purpose\nother than as a predicate to the imposition by the transit adjudication\nbureau of a civil penalty on such respondent pursuant to this\nsubdivision in the event of a subsequent violation, and provided further\nthat such information shall not be open to the public, nor subject to\ncivil or criminal process or discovery, nor used by any court or\nadministrative or adjudicatory body in any action or proceeding therein\nexcept that which is necessary for the adjudication of the notice of\nviolation pursuant to this subdivision or for inspection and copying and\nuse by the respondent.\n b. A penalty for a violation that is the second such violation by a\nrespondent committed in any four year period shall not exceed one\nhundred dollars (exclusive of supplemental penalties, interest or costs\nassessed thereon). Upon payment by such respondent of the penalty in\nfull by the date due for such payment, absent exceptional circumstances\nas set forth in paragraph a of this subdivision, the bureau shall issue\na farecard to the respondent for use on transit facilities in an amount\nnot to exceed one-half of the penalty amount.\n c. A penalty for a violation that is the third or subsequent such\nviolation by a respondent committed in any four year period shall not\nexceed one hundred fifty dollars (exclusive of supplemental penalties,\ninterest or costs assessed thereon).\n d. In the case of a violation by a respondent who at the time of such\nviolation is enrolled in the fair fares program administered by the city\nof New York and provides to the bureau proof of such enrollment, the\npenalty amount for such violation shall not exceed fifty percent of the\npenalty amount applicable to such violation pursuant to the schedule of\nsuch penalties as may from time to time be established by rules of the\nauthority in accordance with paragraphs a through c of this subdivision\n(exclusive of supplemental penalties, interest or costs assessed\nthereon).\n e. Notwithstanding paragraphs a through d of this subdivision, the\nbureau shall forgive penalties or any portion of penalties imposed on a\nrespondent for a violation of the rules of the authority or of the MTA\nbus company relating to the payment of fares on the condition that the\nrespondent enrolls in the fair fares program administered by the city of\nNew York and provides to the bureau proof of such enrollment.\n 12. Civil penalties relating to payment of railroad fare violations.\nCivil penalties imposed by the bureau in connection with a violation by\na respondent of the rules of the authority or the metropolitan\ntransportation authority or any of its subsidiaries relating to the\npayment of fares to the Metro-North railroad and Long Island rail road\nshall adhere to the following conditions:\n a. In the case of a violation by a respondent who at the time of such\nviolation is enrolled in the fair fares program administered by the city\nof New York and provides to the bureau proof of such enrollment, the\npenalty amount for such violation shall not exceed fifty percent of the\npenalty amount applicable to such violation pursuant to the schedule of\nsuch penalties as may from time to time be established by rules of the\nauthority or metropolitan transportation authority or any of its\nsubsidiaries.\n b. Notwithstanding the rules of the authority or the metropolitan\ntransportation authority or any of its subsidiaries, the bureau shall\nforgive penalties or any portion of penalties imposed on a respondent\nfor a violation of the rules of the authority or of the metropolitan\ntransportation authority or any of its subsidiaries relating to the\npayment of fares to the Metro-North railroad or Long Island rail road on\nthe condition that the respondent enrolls in the fair fares program\nadministered by the city of New York and provides to the bureau proof of\nsuch enrollment.\n 13. Reporting. Within two years of the effective date of this\nsubdivision, the metropolitan transportation authority shall begin\npublishing through the open data website established under section\ntwelve hundred seventy-nine-i of this article, data regarding fare\nevasion infractions adjudicated by the bureau, including without\nlimitation the number of transit and railroad infractions issued by\nlocation including, to the extent ascertainable, the subway stop, bus\nroute and/or stop if applicable, the number and percentage of transit or\nrailroad infractions for which a written warning was issued broken down\nby location including, to the extent ascertainable, the subway stop, bus\nroute and/or stop if applicable, the date and time of day of each\ninfraction, the number and percentage of transit and railroad\ninfractions issued wherein the infraction was a second or subsequent\ninfraction alleged against the respondent, and such other information as\nthe authority or bureau deem appropriate. No identifiable information\nabout individual violations shall be published in such reporting.\n