The Dept. of Sanitation continues to issue tickets for a rule that was never properly established under law, according to Sen. Tony Avella.
Avella, D-Bayside, first , when he said the agency’s policy of ticketing homeowners who place trash receptacles out too early, violates the City Administrative Procedure Act. The Act mandates that proposed rules must be published to give the public an opportunity to comment on them.
Once the rule is adopted, it must be published in the Compilation of Rules and in the City Record.
The department’s current policy stipulates that residential units should not place receptacles on the sidewalk for collection until 5 p.m. the day before the scheduled pick-up.
Between Oct. 1 and April 1, residents should put the receptacles out no earlier than 4 p.m., according to the DOS’s “Summary of Sanitation Rules and Regulations.”
“DOS ignored all the CAPA requirements in establishing and implementing this de facto rule and the result is an uninformed public who are receiving significant fines for placing their garbage out at times they consider reasonable,” the senator said in January.
He alleged that the policy was never created as an official rule, opened for public comment or published in the City Record.
"I have requested that DOS immediately cease enforcement of this Policy and take the necessary steps to either properly establish it as a formal rule pursuant to CAPA’s requirements or abandon this idea completely," said Avella, adding, "This way the public will be properly informed of the times they can place their garbage cans on the curbs."
He is also demanding that DOS refund all fines that were issued in relation to the policy.
At this time however, it isn't looking like he'll get his way. The DOS said in a statement that "The statutory mandate -- as per the NYC Administrative Code -- going back many decades is that refuse must be stored in the building and not placed out until the time for removal by the Department."
Since collection times begin at 6 a.m., the DOS further said that they allow New Yorkers to place their refuse out the evening prior to pickup as a "courtesy."
"In so doing, the Department is reasonably enforcing the statute which is critical to protecting public health," DOS said.
The issue was raised when JoAnn Kelly, who lives on 170th St. in Flushing, and others like her, complained to Avella about a ticket her late husband received for putting garbage out too early.
“My husband and I did not know about this law. We have lived in our house for over 40 years and have always done what we are supposed to do, always following the law," said Kelly.
"My husband was upset when he received the fine. Then he passed away and now I feel bad that he was so upset about it." Kelly said, adding she has been appealing the ticket for several months.
“Unfortunately, Ms. Kelly is not the only one affected by the issuance of significant fines based on this void policy," said Avella.
If the policy truly is void, it wouldn't be the first time Baysiders were charged for a questionable DOS policy. In 2010, Patch reported that cars were during street cleaning hours. No street cleaning has occured on Bell Blvd. for several decades.
The Dept. of Finance has still not issued refunds to those ticketted, saying fines are imposed according to the signs, .