N.Y. Transportation Law § 145: Penalties and forfeitures for violations

§ 145. Penalties and forfeitures for violations. 1. Any certificate or

permit may, after a hearing, be suspended, cancelled, revoked or

modified, in whole or in part, for failure to comply with the provisions

of this chapter or with any lawful rule, order or regulation of the

commissioner promulgated hereunder or with any term, condition, or

limitation of such certificate or permit or for failure to render

reasonably continuous service within the scope of the certificate or

permit.

2. The commissioner may upon complaint or upon the commissioner's

initiative without complaint institute proceedings to revoke, cancel,

suspend or modify any certificate or permit issued pursuant to this

chapter after a hearing at which the holder of such certificate or

permit and any person making such complaint shall be given an

opportunity to be heard. Provided, however, that any order of the

commissioner revoking, cancelling, suspending or modifying any

certificate or permit shall not become effective until thirty days after

the serving of notice thereof upon the holder of such certificate or

permit, unless the commissioner determines that the continued holding of

such certificate or permit for such period would be contrary to the

public interest. Hearings shall be held in such manner and upon such

notice as may be prescribed by rules of the commissioner, but such

notice shall be of not less than ten days and shall state the nature of

the complaint.

3. In addition to, or in lieu of, any sanctions set forth in this

section, the commissioner may, after a hearing, impose a penalty not to

exceed a maximum of ten thousand dollars in any one proceeding upon any

person if the commissioner finds that such person or officer, agent or

employee thereof has failed to comply with the requirements of this

chapter or any rule, regulation or order of the commissioner promulgated

thereunder. If such penalty is not paid within four months, the amount

thereof may be entered as a judgment in the office of the clerk of the

county of Albany and in any other county in which the person resides,

has a place of business or through which it operates. Thereafter, if

said judgment has not been satisfied within ninety days, any certificate

or permit held by any such person may be revoked upon notice but without

a further hearing. Provided, however, that if a person shall apply for a

rehearing of the determination of the penalty pursuant to the provisions

of section eighty-nine of this chapter, judgment shall not be entered

until a determination has been made on the application for a rehearing.

Further provided however, that if after a rehearing a penalty is imposed

and such penalty is not paid within four months of the date of service

of the rehearing decision, the amount of such penalty may be entered as

a judgment in the office of the clerk of the county of Albany and in any

other county in which the person resides, has a place of business or

through which it operates. Thereafter, if said judgment has not been

satisfied within ninety days, any certificate or permit held by any such

person may be revoked upon notice but without a further hearing.

4. If after notice and opportunity to be heard, the commissioner shall

find that any person or persons is or are providing transportation

subject to regulation under this chapter without having any certificate

or permit, or is or are holding themselves out to the public by

advertising or any other means to provide such transportation without

having any certificate or permit or approval from a city having

jurisdiction pursuant to section eighty of this chapter, the

commissioner may notify the commissioner of motor vehicles to that

effect and the commissioner of motor vehicles shall thereupon suspend

the registration or registrations of all motor vehicles owned or

operated by such person or persons except private passenger automobiles

until such time as the commissioner of transportation may give notice

that the violation has been satisfactorily adjusted, and the

commissioner of motor vehicles may direct any police officer to secure

possession of the number plates of such motor vehicles and to return the

same to the commissioner of motor vehicles. Failure of the holder or of

any person possessing such number plates to deliver such number plates

to any police officer who requests the same pursuant to this subdivision

shall constitute a misdemeanor. The commissioner of motor vehicles shall

have the authority to deny a registration or renewal application to any

other person for the same vehicle and may deny a registration or renewal

application for any other motor vehicle registered in the name of the

applicant where it has been determined that such registrant's intent has

been to evade the purposes of this subdivision and where the

commissioner of motor vehicles has reasonable grounds to believe that

such registration or renewal will have the effect of defeating the

purposes of this subdivision. The procedure on any such suspension shall

be the same as in the case of a suspension under the vehicle and traffic

law. Operation of any motor vehicle while under suspension as herein

provided shall constitute a class A misdemeanor. A person who operates a

motor vehicle while such vehicle is under suspension as provided in this

subdivision in a manner that causes the death of another person, knowing

that the operation of such vehicle is in violation of this subdivision,

shall be guilty of a class E felony.

5. Any person, whether carrier, passenger, shipper, consignee, or

broker, or any officer, employee, agent or representative thereof, who

shall knowingly offer, grant or give or solicit, accept, or receive any

rebate, concession or discrimination in violation of this chapter, or

who by means of any false statement or representation, or by the use of

any false or fictitious bill, bill of lading, receipt, voucher, roll,

account, claim, certificate, affidavit, deposition, lease or bill of

sale, or by any other means or device, shall knowingly and willfully

assist, suffer or permit any person or persons to obtain transportation

of property or passengers subject to this chapter for less than the

applicable rate, toll or charge, or who, with respect to the

transportation of household goods, shall knowingly or willfully

misrepresent the applicable rate for transportation or the weight of a

shipment or the cost of transportation to the shipper, or who shall

knowingly and willfully by any such means or otherwise fraudulently seek

to evade or defeat regulation as provided for in this chapter, shall be

guilty of a misdemeanor and upon conviction thereof be fined not more

than one thousand dollars for the first offense and not more than two

thousand five hundred dollars for any subsequent offense.

6. Any person who shall provide transportation for compensation within

the state, or hold himself or herself out to the public by advertising

or any other means to provide such transportation, when such

transportation requires either the permission or approval of the

commissioner, or the permission, approval or franchise of any city

having regulatory jurisdiction over such transportation and who does not

possess a valid permit, certificate or approval for such transportation,

from the commissioner or from such city, shall be guilty of a traffic

infraction punishable by a fine of not less than one thousand dollars

and not more than one thousand five hundred dollars for the first

offense. A violation of this subdivision by a person who has previously

been convicted of such offense within five years of the violation shall

be a misdemeanor and shall be punishable by a fine of not less than two

thousand dollars and not more than five thousand dollars, or by

imprisonment for not more than sixty days, or by both such fine and

imprisonment. Upon conviction as a second or subsequent offender as

described herein the court may order forfeiture of any right, title or

interest held by the defendant in any motor vehicle used in the

commission of such offense pursuant to the provisions of subdivision

seven of this section. In addition to, or in lieu of, any sanction set

forth in this subdivision, the commissioner may, after a hearing, impose

a penalty equal to the gain or profit derived from transportation

services conducted in violation of this subdivision. Any person holding

regulatory authority or a franchise from either the commissioner or any

city having regulatory jurisdiction over such transportation, or any

public transportation authority created pursuant to title nine, eleven,

eleven-A, eleven-B, eleven-C or eleven-D of article five of the public

authorities law, who is being adversely affected by a person providing

transportation without having the necessary regulatory authority or

franchise from the commissioner or any such city, may bring suit in his,

her or its own behalf to restrain such person and recover damages

resulting from the actions of such person.

7. (a) Whenever it appears that any person is violating the provisions

of subdivision six of this section, the commissioner acting by the

attorney general, or the city acting by its corporation counsel, or

designee, may bring suit against such person in any court of competent

jurisdiction to restrain such person from continuing such violation. In

any such suit, the court shall have jurisdiction to grant to the

commissioner or city without bond or other undertaking, such prohibitory

or mandatory injunctions as the facts may warrant, including temporary

restraining orders and preliminary or permanent injunctions, and to levy

upon the gain or profit that may be subject to a penalty pursuant to

subdivision six of this section. In cities with a population of one

million or more, the police department shall have the power to issue

summonses for violations of subdivision six of this section and those

summonses shall be adjudicated according to the rules and regulations

set forth in article two-A of the vehicle and traffic law. The hearing

officer responsible for adjudication of any violation of such

subdivision six shall review the record of any person found guilty of

violating such subdivision six to determine whether or not that person

has a prior conviction under such subdivision six. After a review of the

record, if it is found that there has been a prior conviction, the

hearing officer shall refer the matter to the appropriate local criminal

court for prosecution under this article.

(b) Any person convicted as a third or subsequent offender as

described in subdivision six shall be subject to a court order divesting

him of any right, title or interest in any motor vehicle used in the

commission of the offense. An action for forfeiture may be commenced by

the attorney general on behalf of the commissioner or the corporation

counsel or designee on behalf of the city in any superior court in the

county of conviction. The defendant shall have a right to a trial by

jury on any issue of fact. The plaintiff in the forfeiture action shall

have the burden of proof by clear and convincing evidence on such issues

of fact.

(c) Any order of forfeiture issued pursuant to this subdivision shall

include provisions for the disposal of the property found to have been

forfeited. Such provisions shall be directed to the attorney general or

corporation counsel or designee as the case may be, and may include, but

are not limited to, an order directing that the property be sold in

accordance with provisions of article fifty-one of the civil practice

law and rules. Net proceeds of the sale shall be paid into the general

fund of the state or city, as the case may be, less all costs and

attendant expenses of seizure, storage and forfeiture, as the case may

be, which shall be paid to the office of the attorney general or

corporation counsel in the appropriate case notwithstanding any other

provisions of law.

8. All penalties charged and collected by the commissioner pursuant to

this section shall be deposited by the comptroller into the special

obligation reserve and payment account of the dedicated highway and

bridge trust fund established pursuant to section eight-nine-b of the

state finance law.