§ 145 — Penalties and forfeitures for violations

§ 145. Penalties and forfeitures for violations. 1. Any certificate or\npermit may, after a hearing, be suspended, cancelled, revoked or\nmodified, in whole or in part, for failure to comply with the provisions\nof this chapter or with any lawful rule, order or regulation of the\ncommissioner promulgated hereunder or with any term, condition, or\nlimitation of such certificate or permit or for failure to render\nreasonably continuous service within the scope of the certificate or\npermit.\n 2. The commissioner may upon complaint or upon the commissioner's\ninitiative without complaint institute proceedings to revoke, cancel,\nsuspend or modify any certificate or permit issued pursuant to this\nchapter after a hearing at which the holder of such certificate or\npermit and any person making such complaint shall be given an\nopportunity to be heard. Provided, however, that any order of the\ncommissioner revoking, cancelling, suspending or modifying any\ncertificate or permit shall not become effective until thirty days after\nthe serving of notice thereof upon the holder of such certificate or\npermit, unless the commissioner determines that the continued holding of\nsuch certificate or permit for such period would be contrary to the\npublic interest. Hearings shall be held in such manner and upon such\nnotice as may be prescribed by rules of the commissioner, but such\nnotice shall be of not less than ten days and shall state the nature of\nthe complaint.\n 3. In addition to, or in lieu of, any sanctions set forth in this\nsection, the commissioner may, after a hearing, impose a penalty not to\nexceed a maximum of ten thousand dollars in any one proceeding upon any\nperson if the commissioner finds that such person or officer, agent or\nemployee thereof has failed to comply with the requirements of this\nchapter or any rule, regulation or order of the commissioner promulgated\nthereunder. If such penalty is not paid within four months, the amount\nthereof may be entered as a judgment in the office of the clerk of the\ncounty of Albany and in any other county in which the person resides,\nhas a place of business or through which it operates. Thereafter, if\nsaid judgment has not been satisfied within ninety days, any certificate\nor permit held by any such person may be revoked upon notice but without\na further hearing. Provided, however, that if a person shall apply for a\nrehearing of the determination of the penalty pursuant to the provisions\nof section eighty-nine of this chapter, judgment shall not be entered\nuntil a determination has been made on the application for a rehearing.\nFurther provided however, that if after a rehearing a penalty is imposed\nand such penalty is not paid within four months of the date of service\nof the rehearing decision, the amount of such penalty may be entered as\na judgment in the office of the clerk of the county of Albany and in any\nother county in which the person resides, has a place of business or\nthrough which it operates. Thereafter, if said judgment has not been\nsatisfied within ninety days, any certificate or permit held by any such\nperson may be revoked upon notice but without a further hearing.\n 4. If after notice and opportunity to be heard, the commissioner shall\nfind that any person or persons is or are providing transportation\nsubject to regulation under this chapter without having any certificate\nor permit, or is or are holding themselves out to the public by\nadvertising or any other means to provide such transportation without\nhaving any certificate or permit or approval from a city having\njurisdiction pursuant to section eighty of this chapter, the\ncommissioner may notify the commissioner of motor vehicles to that\neffect and the commissioner of motor vehicles shall thereupon suspend\nthe registration or registrations of all motor vehicles owned or\noperated by such person or persons except private passenger automobiles\nuntil such time as the commissioner of transportation may give notice\nthat the violation has been satisfactorily adjusted, and the\ncommissioner of motor vehicles may direct any police officer to secure\npossession of the number plates of such motor vehicles and to return the\nsame to the commissioner of motor vehicles. Failure of the holder or of\nany person possessing such number plates to deliver such number plates\nto any police officer who requests the same pursuant to this subdivision\nshall constitute a misdemeanor. The commissioner of motor vehicles shall\nhave the authority to deny a registration or renewal application to any\nother person for the same vehicle and may deny a registration or renewal\napplication for any other motor vehicle registered in the name of the\napplicant where it has been determined that such registrant's intent has\nbeen to evade the purposes of this subdivision and where the\ncommissioner of motor vehicles has reasonable grounds to believe that\nsuch registration or renewal will have the effect of defeating the\npurposes of this subdivision. The procedure on any such suspension shall\nbe the same as in the case of a suspension under the vehicle and traffic\nlaw. Operation of any motor vehicle while under suspension as herein\nprovided shall constitute a class A misdemeanor. A person who operates a\nmotor vehicle while such vehicle is under suspension as provided in this\nsubdivision in a manner that causes the death of another person, knowing\nthat the operation of such vehicle is in violation of this subdivision,\nshall be guilty of a class E felony.\n 5. Any person, whether carrier, passenger, shipper, consignee, or\nbroker, or any officer, employee, agent or representative thereof, who\nshall knowingly offer, grant or give or solicit, accept, or receive any\nrebate, concession or discrimination in violation of this chapter, or\nwho by means of any false statement or representation, or by the use of\nany false or fictitious bill, bill of lading, receipt, voucher, roll,\naccount, claim, certificate, affidavit, deposition, lease or bill of\nsale, or by any other means or device, shall knowingly and willfully\nassist, suffer or permit any person or persons to obtain transportation\nof property or passengers subject to this chapter for less than the\napplicable rate, toll or charge, or who, with respect to the\ntransportation of household goods, shall knowingly or willfully\nmisrepresent the applicable rate for transportation or the weight of a\nshipment or the cost of transportation to the shipper, or who shall\nknowingly and willfully by any such means or otherwise fraudulently seek\nto evade or defeat regulation as provided for in this chapter, shall be\nguilty of a misdemeanor and upon conviction thereof be fined not more\nthan one thousand dollars for the first offense and not more than two\nthousand five hundred dollars for any subsequent offense.\n 6. Any person who shall provide transportation for compensation within\nthe state, or hold himself or herself out to the public by advertising\nor any other means to provide such transportation, when such\ntransportation requires either the permission or approval of the\ncommissioner, or the permission, approval or franchise of any city\nhaving regulatory jurisdiction over such transportation and who does not\npossess a valid permit, certificate or approval for such transportation,\nfrom the commissioner or from such city, shall be guilty of a traffic\ninfraction punishable by a fine of not less than one thousand dollars\nand not more than one thousand five hundred dollars for the first\noffense. A violation of this subdivision by a person who has previously\nbeen convicted of such offense within five years of the violation shall\nbe a misdemeanor and shall be punishable by a fine of not less than two\nthousand dollars and not more than five thousand dollars, or by\nimprisonment for not more than sixty days, or by both such fine and\nimprisonment. Upon conviction as a second or subsequent offender as\ndescribed herein the court may order forfeiture of any right, title or\ninterest held by the defendant in any motor vehicle used in the\ncommission of such offense pursuant to the provisions of subdivision\nseven of this section. In addition to, or in lieu of, any sanction set\nforth in this subdivision, the commissioner may, after a hearing, impose\na penalty equal to the gain or profit derived from transportation\nservices conducted in violation of this subdivision. Any person holding\nregulatory authority or a franchise from either the commissioner or any\ncity having regulatory jurisdiction over such transportation, or any\npublic transportation authority created pursuant to title nine, eleven,\neleven-A, eleven-B, eleven-C or eleven-D of article five of the public\nauthorities law, who is being adversely affected by a person providing\ntransportation without having the necessary regulatory authority or\nfranchise from the commissioner or any such city, may bring suit in his,\nher or its own behalf to restrain such person and recover damages\nresulting from the actions of such person.\n 7. (a) Whenever it appears that any person is violating the provisions\nof subdivision six of this section, the commissioner acting by the\nattorney general, or the city acting by its corporation counsel, or\ndesignee, may bring suit against such person in any court of competent\njurisdiction to restrain such person from continuing such violation. In\nany such suit, the court shall have jurisdiction to grant to the\ncommissioner or city without bond or other undertaking, such prohibitory\nor mandatory injunctions as the facts may warrant, including temporary\nrestraining orders and preliminary or permanent injunctions, and to levy\nupon the gain or profit that may be subject to a penalty pursuant to\nsubdivision six of this section. In cities with a population of one\nmillion or more, the police department shall have the power to issue\nsummonses for violations of subdivision six of this section and those\nsummonses shall be adjudicated according to the rules and regulations\nset forth in article two-A of the vehicle and traffic law. The hearing\nofficer responsible for adjudication of any violation of such\nsubdivision six shall review the record of any person found guilty of\nviolating such subdivision six to determine whether or not that person\nhas a prior conviction under such subdivision six. After a review of the\nrecord, if it is found that there has been a prior conviction, the\nhearing officer shall refer the matter to the appropriate local criminal\ncourt for prosecution under this article.\n (b) Any person convicted as a third or subsequent offender as\ndescribed in subdivision six shall be subject to a court order divesting\nhim of any right, title or interest in any motor vehicle used in the\ncommission of the offense. An action for forfeiture may be commenced by\nthe attorney general on behalf of the commissioner or the corporation\ncounsel or designee on behalf of the city in any superior court in the\ncounty of conviction. The defendant shall have a right to a trial by\njury on any issue of fact. The plaintiff in the forfeiture action shall\nhave the burden of proof by clear and convincing evidence on such issues\nof fact.\n (c) Any order of forfeiture issued pursuant to this subdivision shall\ninclude provisions for the disposal of the property found to have been\nforfeited. Such provisions shall be directed to the attorney general or\ncorporation counsel or designee as the case may be, and may include, but\nare not limited to, an order directing that the property be sold in\naccordance with provisions of article fifty-one of the civil practice\nlaw and rules. Net proceeds of the sale shall be paid into the general\nfund of the state or city, as the case may be, less all costs and\nattendant expenses of seizure, storage and forfeiture, as the case may\nbe, which shall be paid to the office of the attorney general or\ncorporation counsel in the appropriate case notwithstanding any other\nprovisions of law.\n 8. All penalties charged and collected by the commissioner pursuant to\nthis section shall be deposited by the comptroller into the special\nobligation reserve and payment account of the dedicated highway and\nbridge trust fund established pursuant to section eight-nine-b of the\nstate finance law.\n