State Sen. Tony Avella (D-Bayside) doesn’t think fines given by the Department of Sanitation for putting out garbage too early are legal and that residents should contest them.
During a press conference in his Bayside office Friday, Avella charged the DOS with illegally issuing fines regarding its policy of when to place garbage on the curb the day before the scheduled collection. The DOS policy, as spelled out in its “A Summary of Sanitation Rules and Regulations” is that residential units may place receptacles for collection on the sidewalk no earlier than 5 p.m. the day before the scheduled pickup and no earlier than 4 p.m. from Oct. 1 to April 1.
But Avella believes that the policy violates the City Administrative Procedure Act, which requires that any proposed rule be published and the public be given time to comment. Once a rule is adopted, it must then be published in the Compilation of City Rules and in the City Record.
To become an official rule also requires a public hearing and a vote by the City Council.
“You can’t give a ticket for a policy, just a regulation,” Avella said. “The city never got that regulation approved. Someone dropped the ball.”
The senator and his staff have researched the topic and say the policy may go back decades. He knows for sure it’s been in effect since the Koch administration as Avella worked for the Mayor’s Office at that time. Koch was first elected in 1977.
“I believe this policy is not only unenforceable, but should be void because it was not properly established under the city’s rule-making procedures,” Avella said.
He was alerted to the situation by several constituents who contacted his office complaining about hefty fines issued by the DOS for leaving garbage outside homes earlier than allowed. “People are getting $100 fines that can go up to $300,” Avella said. “One disabled homeowner is worried she’ll get a ticket because her caregiver leaves at 2 p.m. and puts out the garbage then.”
The legislator believes the DOS ignored all the CAPA requirements in establishing and implementing this de facto rule, resulting in “an uninformed public and the issuance of significant fines against many alleged violators.”
He has seen an uptick in complaints over the last month and blames it on the Bloomberg administration for pressuring city agencies to come up with revenue-generating initiatives. “It’s just another way for the city to collect more money,” Avella said.
He wants the DOS to stop enforcement of the policy and take steps to make it a formal rule. He also wants exceptions to be made for the disabled and elderly homeowners and to create separate times for commercial and residential garbage cans to be placed on the curb.
His final request may be even harder to implement. Avella is asking the DOS to immediately refund all fines paid to the city by anyone who received a summons since the policy was originally enforced.
Kathy Dawkins, spokeswoman for the DOS, said in 2006 after hearing concerns from residents and members of the City Council, including then-Councilman Avella, the agency agreed to change the long-standing time to put out garbage from 8 p.m. to 5 p.m. and no earlier than 4 p.m. from October to April.
“It was also agreed that the department would amend its Digest of Codes to reflect this change, which has been beneficial to the public by preventing waste from being stored at curbside,” Dawkins said.
She did not address the legality of the policy, and Avella said Friday he had just recently written to the DOS about his concerns and is waiting for a response.