Suffolk County, NY Local Law To  Strengthen Enforcement Penalties for ATVs
(Unofficial copy)

Intro. Res. No. 1982-2002 Laid on Table 8/27/2002
Introduced by Legislators Caracciolo, Presiding Officer Tonna, Fisher, Nowick, Lindsay, Fields, Towle

RESOLUTION NO. 1064-2002, ADOPTING LOCAL LAW NO. 27-2002, A LOCAL LAW TO STRENGTHEN ENFORCEMENT PENALTIES FOR ALL TERRAIN VEHICLES (ATV'S)
WHEREAS, there was duly presented and introduced to this County Legislature at a regular meeting held on September 17, 2002, a proposed local law entitled, "A LOCAL LAW TO STRENGTHEN ENFORCEMENT PENALTIES FOR ALL TERRAIN VEHICLES (ATV'S)," and said local law in final form is the same as when presented and introduced; now, therefore, be it
RESOLVED, that said local law be enacted in form as follows:

LOCAL LAW NO. 27-2002, SUFFOLK COUNTY, NEW YORK

A LOCAL LAW TO STRENGTHEN ENFORCEMENT PENALTIES FOR ALL TERRAIN VEHICLES (ATV'S)

BE IT ENACTED BY THE COUNTY LEGISLATURE OF THE COUNTY OF SUFFOLK, as follows:

Section 1. Legislative Intent.

This Legislature hereby finds and determines that Local Laws Nos. 23-1985 and 29-1998 have attempted to safeguard the property of Suffolk County by placing restrictions on the use of ATV's in Suffolk County.

This Legislature further finds and determines that, despite progress, additional penalties are necessary to deter substantial damage that is occurring in County parks and other facilities.

Therefore, the purpose of this law is to strengthen the penalties for violators.

Section 2. Amendment.

I.  Section 469-2 of the SUFFOLK COUNTY CODE is hereby amended alphabetically to read as follows:

Section 469-2. Definitions

As used in this article, the following terms shall have the meanings indicated:

*   *   *   *   *

CRIME - A third conviction for a violation of Section 469-3(A) or (B) of this Article after having been twice convicted of either Section 469-3(A) or (B) within the previous five years.

*   *   *   *   *

INSTRUMENTALITY OF A CRIME - Any property whose use contributed directly and materially to the commission of a crime.

*   *   *   *   *

II. Sections 469-4 and 469-5 of the SUFFOLK COUNTY CODE are hereby amended to read as follows:
 
Section 469-4. Penalties for offenses; enforcement.

A.) A conviction of Section 469-3A or B of this article shall be deemed a criminal violation.  The first conviction for a violation of Section 469-3A or B of this article shall be punishable by a minimum fine of $250, with a maximum fine of $500.00.

B.) A second conviction for a violation of  Section 469-3A or B of this article after having been convicted of a violation of Sections 469-3(A) or (B) within the last five years shall be punishable by a minimum fine of $750 with a maximum fine of $1,500.00.

C.) A third conviction for a violation of  Section 469-3A or B of this article after having been twice convicted of either Section 469-3(A) or (B) within the last five years shall constitute an unclassified misdemeanor and shall be punishable by a fine of $5,000.00 and/or a term of imprisonment not to exceed 16 days.

D.) Willful failure to comply with Section 469-3C of this article shall constitute a violation punishable by a civil fine of $500.00 for each violation.  Each day or part of a day on which a violation continues shall constitute a separate violation.  Section 469-3C of this article shall be enforced by the Suffolk County Office of Consumer Affairs.

E.)  The parent or legal guardian, other than a state or legal social services department foster parent having custody, of any unemancipated person under the age of 18 years of age found guilty of a violation of this article shall be responsible for the payment of the fine imposed by a court of competent jurisdiction for such violation.  In no event shall it be a defense that the parent or legal guardian has exercised due diligent supervision over the activities of the person under the age of 18 years of age.

F.) The parent or legal guardian, other than a state or legal social services department foster parent having custody, of any unemancipated person under the age of 18 years of age found guilty of a violation of this article shall be responsible for restitution for any damage caused to real property or improvements located thereon owned and/or operated by the County of Suffolk.  In no event shall it be a defense that the parent or legal guardian has exercised due diligent supervision over the activities of the person under the age of 18 years of age.

Section 469-5.  Impoundment, redemption, and Forfeiture.

A.  In addition to the penalties set forth in Section 469-4 of this article, a police officer or peace officer may immediately impound an ATV operated in violation of Subsections A and B Section 469-3 of this article.  Such impounded ATV shall be stored by the pertinent police department or enforcement agency pending the identification of the owner as registered with the New York State Department of Motor Vehicles.  Such titled owner shall be sent notice of such impoundment at the address on file with the New York State Department of Motor Vehicles by certified mail within five days after the impoundment.  The law enforcement agency shall not be liable for any damages arising out of the provision of an erroneous name or address of such owner.  The owner of the ATV utilized in violation of this article may redeem the same upon satisfactory proof of ownership and payment of a redemption fee of $500.00.  Such impounded ATV may only be released to the owner of the ATV or to his or her agent as evidenced by a written, notarized agent agreement or duly executed power of attorney.

B.  Any ATV used in violation of paragraph C of Section 469-4 of this article shall be subject to seizure by any peace officer or police officer acting pursuant to his or her special duties, upon probable cause to believe that a crime, as defined in Section 469-4(C), has been committed, and may be forfeited as hereafter provided.  If the ATV is not forfeited, the owner may redeem the vehicle only upon payment of a redemption fee of $3,000.00.  Failure to commence a forfeiture action within one hundred twenty (120) days after the seizure shall result in the immediate return of the ATV to its lawful owner as of the time of the seizure.

1.) A civil action shall be commenced by the County Attorney, or his or her designees, against a criminal defendant to forfeit a seized ATV which is used as the instrumentality of a crime if it can be demonstrated that the ATV was seized in connection with the criminal action of an individual who has been twice convicted of either Section 469-3(A) or (B) within the previous five years, except that no ATV shall be forfeited by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than the owner while the subject property was unlawfully in the possession of a person other than the owner.

2.)  A civil action may also be commenced against a non-criminal defendant to forfeit an ATV used as the instrumentality of a crime subject to the same exceptions contained in paragraphs A and B of this section.

3.)  All action commenced under this Article shall be governed by the procedures enumerated in Article 13-A of the NEW YORK CIVIL PRACTICE LAWS AND RULES, where not specifically outlined herein.

4.)  The seizing agency shall send notification of the seizure to all titled owners, registrants and lienholders on file with the New York State Department of Motor Vehicles at the address on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five (5) business days after the seizure.  Such notification shall inform the recipient that there is a right to an administrative preliminary hearing to determine whether probable cause exists to believe that the property was used as the instrumentality of a crime, and that any person or entity claiming an interest in the property may request a hearing within fifteen (15) days of the seizure.  When desired, the request must be made in writing, by certified mail, return receipt requested, to the seizing agency at the address contained in the notification.  The seizing agency shall schedule the hearing within ten (10) business days after the request is received or as soon as practicable thereafter.

5.)  When an administrative preliminary hearing is held, the administrative Hearing Officer shall review the documents supporting the seizure and any other relevant documents and take any testimony to determine whether there is probable cause to believe that the property was used, was attempted to be used; or was intended to be used as the instrumentality of a crime.  If probable cause is established by the claimant, the Hearing Officer shall authorize the seizure and continued retention of the property by the seizing agency pending a judicial determination of the ancillary civil forfeiture action.  The administrative Hearing Officer shall render a ruling within five (5) business days after such hearing, with a copy of such ruling to be provided to all parties.

6.)  No ATV shall be forfeited under this Article to the extent of the interest of an owner or lien holder by reason of any act or omission established by that owner or lien holder to have been committed without the knowledge of that owner or lien holder or without the consent of that owner or lien holder.  The owner or lien holder must have taken all prudent steps to prevent the illegal use of his or her property.  Willful disregard by the owner or lien holder of the acts giving rise to forfeiture shall not constitute a defense to such forfeiture.

7.)  Any action to forfeit a seized ATV under this Article shall be commenced within one hundred twenty (120) days after the seizure and said action shall be civil, remedial in nature, and shall not be deemed to be a penalty or criminal forfeiture for any purpose.  An action under this Article shall not be deemed a criminal proceeding of any type.  The action shall be commenced in the manner prescribed by the NEW YORK CIVIL PRACTICE LAWS AND RULES.  Potential claimants to the seized asset shall be served with a summons and notice or summons and verified complaint.  No ATV shall be forfeited without service of notice upon potential claimants to the seized ATV and the opportunity for a hearing given prior to such forfeiture.

8.)  In order to establish its case in any action commenced under this Article, the County shall demonstrate, by clear and convincing evidence, that the ATV in question is subject to forfeiture at the time of commission of the crime, which precipitated the seizure or the commencement of an action for the seizure of the property without regard to the final determination of any criminal actions brought against the individual for such crime.  The owner or lien holder of the ATV shall then have the burden of providing a lack of knowledge or lack of consent on behalf of said owner or lien holder sufficient to constitute a defense to such forfeiture.

9.)  All ATV's seized pursuant to this Article shall be subject to reasonable and customary towing and daily storage fees.  Such fees shall be payable to the seizing agent prior to the release of said property.
 

II. Sections 469-6 and 469-7 of the SUFFOLK COUNTY CODE are hereby added to read as follows:
Section 469-6.  Disposition of forfeited ATV's.
A.)  Whenever ATV's are forfeited under this Article, the County Attorney, or his or her respective designee, may:
1.) Transfer the ATV to any County agency, department, or other political subdivision which demonstrating a need for the ATV so that the ATV may be put into official use by that agency, department, or other political subdivision.

2.) Sell any forfeited ATV which is not required to be destroyed by law and which is not harmful to the public.

3.) Transfer the ATV to any county-funded agency or organization demonstrating need for the ATV so that the ATV may be put into use by the funded agency or organization in the regular course of business of that funded agency or organization.  Any such transfer of forfeited ATV's under this subsection may result in an in-kind deduction from those funds paid by the county to the specific agency or organization.

B.) Any funds generated by the sale of forfeited ATV's, minus the necessary expenses incurred in connection with the maintenance, storage, and sale of the ATV's prior to disposition and the satisfaction of any valid liens on said ATV, shall be distributed as follows:
i.) Twenty percent (20%) to the Office of the County Attorney to offset costs and expenses incurred in the investigation, preparation, and litigation of the forfeiture action, including that proportion of the salaries of the attorneys, clerical staff, and investigative personnel devoted thereto;

ii.) Ten percent (10%) to the Sheriff's Department to offset costs and expenses incurred in the service of process of the civil forfeiture actions, including that proportion of the salaries of the personnel devoted thereto;

iii.) Thirty percent (30%) shall be deposited into an asset forfeiture fund in a separate, non-lapsing law enforcement purposes sub account of the seizing law enforcement agency; and

iv.) Forty percent (40%) shall be deposited into an asset forfeiture fund in a separate, non-lapsing law enforcement purpose sub account of the Suffolk County Parks Department.

Section 469-7.  Discretionary action.
A.) Nothing contained in this Article shall require the County Attorney, or his or her respective designee, to commence a forfeiture action when in his or her discretion, it is in the interests of justice not to commence such an action.

B.) Nothing contained in this Article shall require a court to order a forfeiture when it determines, in its discretion, that it is in the interests of justice not to do so.

C.) Any property so impounded after seizure shall remain in the custody of the seizing law enforcement agency, except pursuant to a certificate which orders the release of the property in the interests of justice or a showing of legal impediment and subject to the post-seizure retention hearing authorized under Section 469-5(B)(8) of this Chapter.  In order to obtain such a certificate, a party alleging a legal interest in the property so seized may commence a special proceeding, in the Court in which the forfeiture action may be commenced, requesting the issuance of such a certificate on notice to Suffolk County or by filing an appropriate motion after Suffolk County has commenced an action to forfeit the property.  In either event, it shall be the obligation of Suffolk County to provide the notice of the proceeding to any other parties known to Suffolk County at the time of the proceeding to have a legal interest in the property.  The Court shall render a ruling in such special proceeding or motion within five (5) business days after such filing or hearing, whichever event occurs last.

Section 3.  Applicability.
This law shall apply to all actions occurring on or after the effective date of this law.
Section 4.  Severability.

If any clause, sentence, paragraph, subdivision, section, or part of this law or the application thereof to any person, individual, corporation, firm, partnership, entity, or circumstance shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section, or part of this law, or in its application to the person, individual, corporation, firm, partnership, entity, or circumstance directly involved in the controversy in which such order or judgment shall be rendered.

Section 5. SEQRA Determination

This Legislature, being the State Environmental Quality Review Act (SEQRA) lead agency, hereby finds and determines that this law constitutes a Type II action pursuant to Section 617.5(c)(21) of Title 6 of the NEW YORK CODE OF RULES AND REGULATIONS (6 NYCRR) and within the meaning of Section 8-0109(2) of the NEW YORK ENVIRONMENTAL CONSERVATION LAW as a promulgation of regulations, rules, policies, procedures, and legislative decisions in connection with continuing agency administration, management and information collection.  The Suffolk County Council on Environmental Quality (CEQ) is hereby directed to circulate any appropriate SEQRA notices of determination of non-applicability or non-significance in accordance with this law.

Section 6. Effective Date

This law shall take effect immediately upon filing in the Office of the Secretary of State.

DATED: November 19, 2002

APPROVED BY:
Robert Gaffney
County Executive of Suffolk County
after a public hearing duly held on December 3, 2002
Date of Approval: 12/19/02
Filed with the Secretary of State on January 8, 2003