The application of petitioner for an order pursuant to CPLR Article 78, annulling the final order of the New York City Environmental Control Board ("ECB") dated June 27, 2013 imposing a $2,000 mandatory fine upon petitioner for removal of recyclables from a residence using a motor vehicle, and declaring that the $2,000 mandatory fine is excessive for the offense, is granted.

Petitioner Miguel Ruiz is an unemployed handyman who is financially supported by disability payments. On October 19, 2012, a sanitation officer issued petitioner a notice of violation with a mandatory fine of $2,000 for removing recyclable metal, an air conditioning unit, from the curb outside of a residential premise and placing it into a motor vehicle. [*2]

A hearing was held on November 19, 2012 at ECB, in which petitioner challenged the notice of violation. Petitioner admitted that he took the air conditioning unit and intended to resell it. Petitioner was unaware that removal of the air conditioning unit constituted a violation and argued that the $2,000 mandatory fine issued was excessive. Petitioner further averred that the penalty is disproportionate to the offense and that he lacked the requisite intent to commit the violation.

By decision dated November 20, 2012, administrative law judge ("ALJ") Beth Badner sustained the notice of violation and imposition of the $2,000 mandatory fine. ALJ Badner determined that: (1) the undisputed removal of recyclable metal was sufficient evidence to sustain the notice of violation; (2) ignorance of the law was not a defense to the charge; and (3) ECB does not have jurisdiction to determine whether the fine was excessive.

By notice of appeal dated December 17, 2012, petitioner applied for a waiver of prepayment of the fine and an extension for review of the audio recording of the fair hearing. Permission to appeal without prepayment of the fine was granted on January 3, 2013 due to financial hardship. On April 4, 2013, petitioner filed an appeal from the recommended decision and order and reiterated the argument that the fine was excessive for the charge and the facts of the case.

In an appeal decision and order dated June 27, 2013, the November 20, 2012 order and imposition a $2,000 mandatory fine was affirmed. The appeal decision determined that ignorance of the law is not a defense and that the board may not rule on constitutional challenges.

In the instant proceeding, petitioner challenges the penalty as an excessive fine in violation of the state and federal constitutions.

Respondent avers that petitioner had the ability to mitigate the accrual of the fine and legislative history demonstrates that the fine amount is necessary to achieve proper deterrence.

In reviewing the challenged mandatory fine imposed against petitioner, "the question is not whether [this court] might have imposed another or different penalty, but whether the agency charged with disciplinary responsibility reasonably acted within the scope of its powers." Pell v. Board of Education, 34 NY2d 222, 238 (1974). "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law." Kelly v. Safir, 96 NY2d 32, 38 (2001). "[A] penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." Id. (internal quotations omitted).

Administrative Code Section 16-118(7)(b)(1) provides "it shall be unlawful for any person to disturb, remove or transport by motor vehicle any amount of recyclable materials that have been placed by owners...of residential premises...adjacent to the curb line...for collection or removal by the [sanitation] department unless requested by the owner." The statute, as enacted, applies broadly to individuals who take any amount of recyclable materials. Section [*3]16-118(7)(f)(1)(I) provides that anyone who violates this provision using a motor vehicle shall be assessed a $2,000 fine for the first offense. The fine of $2,000 was enacted to provide harsher penalties to those who use motor vehicles to remove recyclable materials from the curbside.

Here, it is undisputed that petitioner violated the relevant Administrative Code provision. However, this court concludes that the mandatory fine of $2,000 amounts to an unconstitutionally excessive fine.

The Eighth Amendment of the United States Constitution and the New York State Constitution, Article I, Section 5 forbid the imposition of excessive fines. Where a civil fine "serves, at least in part, deterrent and retributive purposes," it is considered punitive and is subject to the Excessive Fines Clause of the Eight Amendment. See County of Nassau v. Canavan, 1 NY3d 134, 139-140 (2003). The Excessive Fines Clause is violated where a fine is "grossly disproportional to the gravity of [the] offense." United States v. Bajakajian, 524 U.S. 321, 334 (1998); see Canavan, 1 NY3d at 140. Additionally, the amount of a fine must bear some relationship to the gravity of the offense that it is designed to punish. Bajakajian, 524 U.S. at 334. In determining proportionality, a court should consider the seriousness of the offense, the severity of the harm caused and the potential harm had the defendant not been apprehended, the maximum fine to which the defendant could have been subject, and the economic circumstances of the defendant. See Canavan, 1 NY3d at 140.

Here, the requirement of a mandatory $2,000 fine is viewed as punitive and is subject to Eight Amendment Analysis. In applying the factors enumerated in Canavan, this court finds that the imposition of a mandatory $2,000 fine for removal of a discarded air conditioning unit is grossly disproportional to the offense charged. The seriousness of the offense is relatively minor, as the amount of recyclable metal that petitioner absconded was negligible. There was no significant harm caused by the conduct of petitioner to the owner of the air conditioning unit, or anyone else in the area, had petitioner not been caught. Moreover, because the statute contains no discretion and mandates a $2,000 fine in all circumstances, petitioner was subject to the maximum punishment for the offense, even though he took a minimal amount of recyclable material. This court also takes into consideration the fact that petitioner is an unemployed handyman. The penalty imposed upon petitioner is shocking to fairness, and a penalty in an amount less than $2,000 would be an adequate deterrent to a first-time offender like petitioner, who is neither a commercial dealer nor someone taking items in bulk. Finally, the record established that, as an unemployed handyman, petitioner had limited financial resources, as evidenced by the financial hardship waiver granted by ECB. Accordingly, this court finds that the June 27, 2013 final order of ECB imposing a $2,000 mandatory fine upon petitioner for removal of recyclables from a residence using a motor vehicle is arbitrary and capricious, and in violation of state and federal constitutions.

Accordingly, it is hereby [*4]

ADJUDGED the application of petitioner for an order pursuant to CPLR Article 78, annulling the final order of ECB dated June 27, 2013 imposing a $2,000 mandatory fine upon petitioner for removal of recyclables from a residence using a motor vehicle, and declaring that the $2,000 mandatory fine is excessive for the offense, is granted.

Dated: March 7, 2014

ENTER:

________________________

J.S.C.