N.Y. Public Authorities Law § 1209-a: Transit adjudication bureau

§ 1209-a. Transit adjudication bureau. 1. Establishment. There is

hereby created in the authority a transit adjudication bureau. The head

of such bureau shall be the executive director, who shall be appointed

by the president of the authority. The executive director may delegate

the powers and duties conferred upon the executive director by this

section to such qualified officers and employees of the bureau as he may

designate.

2. Hearing officers. The president of the authority shall appoint

hearing officers who shall preside at hearings for the adjudication of

charges of transit or railroad infractions, as hereinafter defined and

the adjudication of allegations of liability for violations of the rules

and regulations of the triborough bridge and tunnel authority in

accordance with section two thousand nine hundred eighty-five of this

chapter, and who, as provided below, may be designated to serve on the

appeals board of the bureau. Every hearing officer shall have been

admitted to the practice of law in this state for a period of at least

three years, and shall be compensated for their services on a per diem

basis determined by the bureau.

3. Jurisdiction. The bureau shall have, with respect to acts or

incidents in or on the transit or railroad facilities of the authority

or the metropolitan transportation authority or a subsidiary thereof

committed by or involving persons who are sixteen years of age or over,

and with respect to violation of toll collection regulations of the

triborough bridge and tunnel authority as described in section

twenty-nine hundred eighty-five of this chapter, non-exclusive

jurisdiction over violations of: (a) the rules which may from time to

time be established by the authority under subdivision five-a of section

twelve hundred four of this chapter; (b) article one hundred thirty-nine

of the health code of the city of New York, as it may be amended from

time to time, relating to public transportation facilities; (c) article

four of the noise control code of the city of New York, as it may be

amended from time to time, insofar as it pertains to sound reproduction

devices; (d) the rules and regulations which may from time to time be

established by the triborough bridge and tunnel authority in accordance

with the provisions of section twenty-nine hundred eighty-five of this

chapter; and (e) rules and regulations which may from time to time be

established by the metropolitan transportation authority or a subsidiary

thereof in accordance with the provisions of section twelve hundred

sixty-six of this chapter. Matters within the jurisdiction of the bureau

except violations of the rules and regulations of the triborough bridge

and tunnel authority shall be known for purposes of this section as

transit or railroad infractions, as applicable. Nothing herein shall be

construed to divest jurisdiction from any court now having jurisdiction

over any criminal charge or traffic infraction relating to any act

committed in a transit or toll facility, or to impair the ability of a

police officer to conduct a lawful search of a person in a transit or

railroad facility. The criminal court of the city of New York shall

continue to have jurisdiction over any criminal charge or traffic

infraction brought for violation of the rules of the authority, the

triborough bridge and tunnel authority or the metropolitan

transportation authority or a subsidiary thereof, as well as

jurisdiction relating to any act which may constitute a crime or an

offense under any law of the state of New York or any municipality or

political subdivision thereof and which may also constitute a violation

of such rules. The bureau shall have concurrent jurisdiction with the

environmental control board and the administrative tribunal of the

department of health over the aforesaid provisions of the health code

and noise control code of the city of New York.

4. General powers. The bureau shall have the following functions,

powers and duties:

a. To accept pleas (whether made in person or by mail) to, and to hear

and determine, charges of transit and railroad infractions and

allegations of civil liability pursuant to section two thousand nine

hundred eighty-five of this chapter within its jurisdiction;

b. To impose civil penalties and to issue warnings for any transit or

railroad infraction within its jurisdiction, in accordance with a

penalty schedule established by the authority or the metropolitan

transportation authority or a subsidiary thereof, as applicable, and the

conditions set forth in subdivisions eleven and twelve of this section

and subdivision four of section twelve hundred sixty-six of this

article, except that penalties for violations of the health code of the

city of New York shall be in accordance with the penalties established

for such violations by the board of health of the city of New York, and

penalties for violations of the noise code of the city of New York shall

be in accordance with the penalties established for such violations by

law, and civil penalties for violations of the rules and regulations of

the triborough bridge and tunnel authority shall be in accordance with

the penalties established for such violations by section twenty-nine

hundred eighty-five of this chapter;

c. In its sole discretion, to suspend or forgive penalties or any

portion of penalties imposed on the condition that the respondent

voluntarily agrees to perform and actually does satisfactorily perform

unpaid services on transit or railroad facilities as assigned by the

authority, such as, without limitation, cleaning of rolling stock;

d. To adopt, amend and rescind rules and regulations not inconsistent

with any applicable provision of law to carry out the purposes of this

section, including but not limited to rules and regulations prescribing

the internal procedures and organization of the bureau, the manner and

time of entering pleas, the conduct of hearings, and the amount and

manner of payment of penalties;

e. To enter judgments and enforce them, without court proceedings, in

the same manner as the enforcement of money judgments in civil actions,

as provided below;

f. To compile and maintain complete and accurate records relating to

all warnings, charges and dispositions, which records shall be deemed

exempt from disclosure under the freedom of information law as records

compiled for law enforcement purposes, and provided that, in the absence

of an additional violation, records of a warning issued to an individual

in accordance with paragraph a of subdivision eleven of this section

shall be sealed or expunged as of the date that is four years after the

date that such warning was issued;

g. To apply to a court of competent jurisdiction for enforcement of

any decision or order issued by such bureau or of any subpoena issued by

a hearing officer as provided in paragraph d of subdivision seven of

this section;

h. To enter into contracts with other government agencies, with

private organizations, or with individuals to undertake on its behalf

such functions as data processing, debt collections, mailing, and

general administration, as the executive director deems appropriate,

except that the conduct by hearing officers of hearings and of appeals

may not be performed by outside contractors, and that biometric

identifying technology, including but not limited to facial recognition

technology, may not be used or arranged for use by outside contractors

to enforce or process transit and railroad infractions relating to the

payment of fares;

i. To accept payment of penalties and to remit same to the authority

or the metropolitan transportation authority or a subsidiary thereof, as

applicable; and

j. To adjudicate the liability of motor vehicle owners for violations

of rules and regulations established in accordance with the provisions

of section two thousand nine hundred eighty-five of this chapter.

5. Notices of violation. The bureau shall prepare and distribute

notices of violation in blank to the transit police and any other person

empowered by law, rule and regulation to serve such notices. The form

and wording of the notice of violation shall be prescribed by the

executive director, and it may be the same as any other notice of

violation or summons form already in use if said form meets the

requirements hereof. The notice of violation may include provisions to

record information which will facilitate the identification and location

of respondents, including but not limited to name, address, telephone

numbers, date of birth, social security number if otherwise permitted by

law, place of employment or school, and name and address of parents or

guardian if a minor. Notices of violation shall be issued only to

persons who are sixteen years of age or over, and shall be served by

delivering the notice within the state to the person to be served. A

copy of each notice of violation served hereunder shall be filed and

retained by said bureau, and shall be deemed a record kept in the

ordinary course of business, and, if sworn to or affirmed, shall be

prima facie evidence of the facts contained therein. Said notice of

violation shall contain information advising the person charged of the

manner and the time within which such person may either admit or deny

the offense charged in the notice. Such notice of violation shall also

contain a warning to advise the person charged that failure to plead in

the manner and within the time stated in the notice may result in a

default decision and order being entered against such person, and the

imposition of supplemental penalties as provided in subdivision five-a

of section twelve hundred four or subdivision four of section twelve

hundred sixty-six of this chapter. A notice of violation shall not be

deemed to be a notice of liability issued pursuant to section two

thousand nine hundred eighty-five of this chapter.

6. Defaults. Where a respondent has failed to plead to a notice of

violation or to a notice of liability issued pursuant to section two

thousand nine hundred eighty-five of this chapter within the time

allowed by the rules of said bureau or has failed to appear on a

designated hearing date or a subsequent date following an adjournment,

such failure to plead or appear shall be deemed, for all purposes, to be

an admission of liability and shall be grounds for rendering a default

decision and order imposing a penalty in such amount as may be

prescribed by the authority or the metropolitan transportation authority

or a subsidiary thereof.

7. Hearings. a. (1) A person charged with a transit or railroad

infraction returnable to the bureau or a person alleged to be liable in

accordance with the provisions of section two thousand nine hundred

eighty-five of this chapter who contests such allegation shall be

advised of the date on or by which such person must appear to answer the

charge at a hearing. Notification of such hearing date shall be given

either in the notice of violation or in a form, the content of which

shall be prescribed by the executive director or in a manner prescribed

in section two thousand nine hundred eighty-five of this chapter. Any

such notification shall contain a warning to advise the person charged

that failure to appear on or by the date designated, or any subsequent

rescheduled or adjourned date, shall be deemed for all purposes, an

admission of liability, and that a default judgment may be rendered and

penalties may be imposed. Where notification is given in a manner other

than in the notice of violation, the bureau shall deliver such notice to

the person charged, either personally or by registered or certified

mail.

(2) Whenever a person charged with a transit or railroad infraction or

alleged to be liable in accordance with the provisions of section two

thousand nine hundred eighty-five of this chapter returnable to the

bureau requests an alternate hearing date and is not then in default as

defined in subdivision six of this section, the bureau shall advise such

person personally, or by registered or certified mail, of the alternate

hearing date on or by which such person must appear to answer the charge

or allegation at a hearing. The form and content of such notice of

hearing shall be prescribed by the executive director, and shall contain

a warning to advise the person charged or alleged to be liable that

failure to appear on or by the alternate designated hearing date, or any

subsequent rescheduled or adjourned date, shall be deemed for all

purposes an admission of liability, and that a default judgment may be

rendered and penalties may be imposed.

(3) Whenever a person charged with a transit or railroad infraction or

alleged to be liable in accordance with the provisions of section two

thousand nine hundred eighty-five of this chapter returnable to the

bureau appears at a hearing and obtains an adjournment of the hearing

pursuant to the rules of the bureau, the bureau shall advise such person

personally, or by registered or certified mail, of the adjourned date on

which such person must appear to answer the charge or allegation at a

continued hearing. The form and content of such notice of a continued

hearing shall be prescribed by the executive director, and shall contain

a warning to advise the person charged or alleged to be liable that

failure to appear on the adjourned hearing date shall be deemed for all

purposes an admission of liability, and that a default judgment may be

rendered and penalties may be imposed.

b. Every hearing for the adjudication of a charge of a transit or

railroad infraction or an allegation of liability under section two

thousand nine hundred eighty-five of this chapter hereunder shall be

held before a hearing officer in accordance with the rules and

regulations promulgated by the bureau.

c. The hearing officer shall not be bound by the rules of evidence in

the conduct of the hearing, except rules relating to privileged

communications.

d. The hearing officer may, in their discretion, or at the request of

the person charged or alleged to be liable on a showing of good cause

and need therefor, issue subpoenas to compel the appearance of any

person to give testimony, and issue subpoenas duces tecum to compel the

production for examination or introduction into evidence of any book,

paper or other thing relevant to the charges.

e. In the case of a refusal to obey a subpoena, the bureau may make

application to the supreme court pursuant to section twenty-three

hundred eight of the civil practice law and rules, for an order

requiring such appearance, testimony or production of materials.

f. The bureau shall make and maintain a sound recording or other

record of every hearing.

g. After due consideration of the evidence and arguments, the hearing

officer shall determine whether the charges or allegations have been

established. No charge may be established except upon proof by clear and

convincing evidence except allegations of civil liability for violations

of triborough bridge and tunnel authority rules and regulations will be

established in accordance with the provisions of section two thousand

nine hundred eighty-five of this chapter. Where the charges have not

been established, an order dismissing the charges or allegations shall

be entered. Where a determination is made that a charge or allegation

has been established or if an answer admitting the charge or allegation

has been received, the hearing officer shall set a penalty in accordance

with the penalty schedule established by the authority or the

metropolitan transportation authority or its subsidiaries, or for

allegations of civil liability in accordance with the provisions of

section two thousand nine hundred eighty-five of this chapter and an

appropriate order shall be entered in the records of the bureau. The

respondent shall be given notice of such entry in person or by certified

mail. This order shall constitute the final determination of the hearing

officer, and for purposes of review it shall be deemed to incorporate

any intermediate determinations made by said officer in the course of

the proceeding. When no appeal is filed this order shall be the final

order of the bureau.

8. Administrative and judicial review. a. There shall be appeals

boards within the bureau which shall consist of three or more hearing

officers, as the executive director shall determine. The executive

director shall select a chairman for each appeals board from the members

so appointed. No hearing officer may sit on an appeals board

considering an appeal from a determination made by said hearing officer.

b. A party aggrieved by a final determination of a hearing officer may

obtain a review thereof by serving upon the bureau, within thirty days

of the bureau's service of its notice of entry of such order a notice of

appeal setting forth the reasons why the determination should be

reversed or modified. There shall be no interlocutory appeals.

c. An appeal from a final determination of a hearing officer shall be

submitted to the appeals board, which shall have power to review the

facts and the law, but shall not consider any evidence which was not

presented to the hearing officer, and shall have power to reverse or

modify any judgment appealed from for error of fact or law.

d. Appeals shall be made without the appearance of the appellant and

appellant's attorney unless the presence of either or both are requested

by the appellant, appellant's attorney, appellant's parent or guardian

if appellant is a minor, or the appeals board. Within twenty days after

a request for an appearance, made by or for the appellant, appellant's

attorney or the board, the bureau shall advise the appellant, either

personally or by registered or certified mail, of the date on which he

or she shall appear. The appellant shall be notified in writing of the

decision of the appeals board.

e. A party may request and obtain a record of the proceedings

resulting in a determination for which an appeal is sought, but the

party shall pay to the bureau the cost of providing such record. When a

record is timely requested for the purpose of preparing an appeal, the

bureau shall not thereafter cause the appeal to be heard or submitted

less than ten days after the delivery or mailing of the record to

appellant or appellant's attorney.

f. The service of a notice of appeal shall not stay the enforcement of

an order appealed from unless the appellant shall have posted a bond in,

or shall have paid, the amount of penalties imposed in the order

appealed from within the time period established by rule of the bureau

for payment of penalties following entry of such an order.

g. No determination of a hearing officer which is appealable under the

provisions of this section shall be reviewed in any court unless an

appeal has been filed and determined in accordance with this

subdivision. When an appeal has been filed, the order of the appeals

board shall be the final order of the bureau. Judicial review may be

sought pursuant to article seventy-eight of the civil practice law and

rules.

9. Enforcement of judgments. a. The bureau shall have the power to

enforce its final decisions and orders imposing civil penalties for

violations of laws, rules and regulations enforced by it as if they were

money judgments, without court proceedings, in the manner described

herein.

b. Any final order of the bureau imposing a civil penalty, whether the

adjudication was had by hearing or upon default or otherwise, shall

constitute a judgment rendered by the bureau which may be entered in the

civil court of the city of New York or any other place provided for the

entry of civil judgments within the state, and, provided that no

proceeding for judicial review shall then be pending, may be enforced

without court proceedings in the same manner as the enforcement of money

judgments entered in civil actions. A final order against any person or

persons shall be a bar to the criminal prosecution of, and in the case

of a minor, juvenile offender proceedings against, said person or

persons for conduct upon which the order was based.

c. Notwithstanding the foregoing provisions: (1) Before a judgment

based upon a default may be so entered the bureau must have attempted to

notify the respondent by first class mail, in such form as the bureau

may direct: (i) of the default decision and order and the penalty

imposed; (ii) that a judgment will be entered in the civil court of the

city of New York or any other place provided for the entry of civil

judgments within the state; and (iii) the entry of such judgments may be

avoided by requesting a stay of default for good cause shown and either

requesting a hearing or entering a plea pursuant to the rules of the

bureau within thirty days of the mailing of such notice.

(2) Upon receipt by the bureau of a copy of an order to show cause in

lieu of a notice of petition, or of a notice of petition, served upon it

in a proceeding for judicial review of any final order of the bureau

which constitutes a judgment which may be entered in the civil court of

the city of New York or any other place provided for the entry of civil

judgments within the state, the bureau shall forthwith serve by

first-class mail the attorney for the petitioner in such proceeding, or

if the petitioner has initiated the proceeding pro se, the petitioner,

with a notice stating whether or not a judgment was entered in any such

court or other place provided for the entry of civil judgments within

the state prior to the pendency of such proceeding for judicial review.

If a judgment was so entered, such notice from the bureau also shall

contain: (i) the name and address of the court or other place in which

the judgment was entered, and (ii) identification of the judgment book,

index number, docket number, date of entry, other information or

combination of the foregoing, sufficient for the petitioner's attorney

in such proceeding, or for the petitioner pro se, to locate such entry

of judgment according to the indexing system utilized by the court or

other place in which the judgment was entered. Proof of service of such

notice from the bureau shall be filed by the bureau with the court in

which the proceeding for judicial review is pending at the same time as

the filing with the court of the bureau's first legal papers in such

proceeding. The court in which the proceeding for judicial review is

pending shall not accept for filing the bureau's first legal papers in

such proceeding unless such legal papers are accompanied by such proof

of service.

10. Funds. All penalties collected pursuant to the provisions of this

section shall be paid to the authority to the credit of a transit crime

fund which the authority shall establish. Any sums in this fund shall be

used to pay for programs selected by the board of the metropolitan

transportation authority, in its discretion, to reduce the incidence of

crimes and infractions on transit and railroad facilities, or to improve

the enforcement of laws against such crimes and infractions. Such funds

shall be in addition to and not in substitution for any funds provided

by the state or any political subdivision within the metropolitan

commuter transportation district as established by section twelve

hundred sixty-two of this article for such purposes.

11. Civil penalties relating to payment of transit fare violations.

Civil penalties imposed by the bureau in connection with a violation by

a respondent of the rules of the authority or the MTA bus company

relating to the payment of fares shall adhere to the following

conditions:

a. A violation that is the first such violation by a respondent

committed in any four year period shall, absent exceptional

circumstances including a concurrent violation or violations by such

individual of the penal law or the rules of conduct of the New York city

transit authority or the MTA bus company which causes or may tend to

cause harm to oneself or to any other person, or to the safe operation

of the transit system, be punishable only by an official written warning

issued according to and governed by the rules of the authority in all

respects; provided that such warning shall not be used for any purpose

other than as a predicate to the imposition by the transit adjudication

bureau of a civil penalty on such respondent pursuant to this

subdivision in the event of a subsequent violation, and provided further

that such information shall not be open to the public, nor subject to

civil or criminal process or discovery, nor used by any court or

administrative or adjudicatory body in any action or proceeding therein

except that which is necessary for the adjudication of the notice of

violation pursuant to this subdivision or for inspection and copying and

use by the respondent.

b. A penalty for a violation that is the second such violation by a

respondent committed in any four year period shall not exceed one

hundred dollars (exclusive of supplemental penalties, interest or costs

assessed thereon). Upon payment by such respondent of the penalty in

full by the date due for such payment, absent exceptional circumstances

as set forth in paragraph a of this subdivision, the bureau shall issue

a farecard to the respondent for use on transit facilities in an amount

not to exceed one-half of the penalty amount.

c. A penalty for a violation that is the third or subsequent such

violation by a respondent committed in any four year period shall not

exceed one hundred fifty dollars (exclusive of supplemental penalties,

interest or costs assessed thereon).

d. In the case of a violation by a respondent who at the time of such

violation is enrolled in the fair fares program administered by the city

of New York and provides to the bureau proof of such enrollment, the

penalty amount for such violation shall not exceed fifty percent of the

penalty amount applicable to such violation pursuant to the schedule of

such penalties as may from time to time be established by rules of the

authority in accordance with paragraphs a through c of this subdivision

(exclusive of supplemental penalties, interest or costs assessed

thereon).

e. Notwithstanding paragraphs a through d of this subdivision, the

bureau shall forgive penalties or any portion of penalties imposed on a

respondent for a violation of the rules of the authority or of the MTA

bus company relating to the payment of fares on the condition that the

respondent enrolls in the fair fares program administered by the city of

New York and provides to the bureau proof of such enrollment.

12. Civil penalties relating to payment of railroad fare violations.

Civil penalties imposed by the bureau in connection with a violation by

a respondent of the rules of the authority or the metropolitan

transportation authority or any of its subsidiaries relating to the

payment of fares to the Metro-North railroad and Long Island rail road

shall adhere to the following conditions:

a. In the case of a violation by a respondent who at the time of such

violation is enrolled in the fair fares program administered by the city

of New York and provides to the bureau proof of such enrollment, the

penalty amount for such violation shall not exceed fifty percent of the

penalty amount applicable to such violation pursuant to the schedule of

such penalties as may from time to time be established by rules of the

authority or metropolitan transportation authority or any of its

subsidiaries.

b. Notwithstanding the rules of the authority or the metropolitan

transportation authority or any of its subsidiaries, the bureau shall

forgive penalties or any portion of penalties imposed on a respondent

for a violation of the rules of the authority or of the metropolitan

transportation authority or any of its subsidiaries relating to the

payment of fares to the Metro-North railroad or Long Island rail road on

the condition that the respondent enrolls in the fair fares program

administered by the city of New York and provides to the bureau proof of

such enrollment.

13. Reporting. Within two years of the effective date of this

subdivision, the metropolitan transportation authority shall begin

publishing through the open data website established under section

twelve hundred seventy-nine-i of this article, data regarding fare

evasion infractions adjudicated by the bureau, including without

limitation the number of transit and railroad infractions issued by

location including, to the extent ascertainable, the subway stop, bus

route and/or stop if applicable, the number and percentage of transit or

railroad infractions for which a written warning was issued broken down

by location including, to the extent ascertainable, the subway stop, bus

route and/or stop if applicable, the date and time of day of each

infraction, the number and percentage of transit and railroad

infractions issued wherein the infraction was a second or subsequent

infraction alleged against the respondent, and such other information as

the authority or bureau deem appropriate. No identifiable information

about individual violations shall be published in such reporting.