In Legal Aid Case, Appellate Panel Rules In Favor Of Artist Who Took An Antenna From A Trash Pile For A Sculpture
WEDNESDAY, JULY 17, 2013

A four-judge panel of the Appellate Division, First Department ruled recently that a Brooklyn artist who had taken a TV antenna from a trash pile on a curb to use in a sculpture should not have to pay a $2,000 fine. In Prince v. City of New York, the artist was represented by Steven Wasserman of The Legal Aid Society's Criminal Practice Special Litigation Unit. In an interview with the New York Law Journal, William Gibney, Director of the Society's Criminal Practice Special Litigation Unit, said the ruling is significant because it makes clear that an agency like the Environmental Control Board is "given broader discretion to fashion a remedy that's appropriate to the events." The panel determined that the fine was "grossly disproportional to the gravity of the offense and must be vacated," citing the Eighth Amendment's prohibition on "excessive fines.




New York Law Journal
Panel Finds 'Excessive' City Fine for Poaching Antenna From Trash
By Brendan Pierson

A Brooklyn artist who took a TV antenna from a trash pile on a curb to use in a sculpture does not have to pay a $2,000 fine to New York City, a unanimous state appeals panel ruled yesterday, reversing a lower court judge.

The four-judge panel of the Appellate Division, First Department, held in Prince v. City of New York, 403135/11, that the fine was "grossly disproportional to the gravity of the offense and must be vacated," citing the Eighth Amendment's prohibition on "excessive fines." The opinion was written by Justice Rosalyn Richter, joined by Presiding Justice Luis Gonzalez and Justices Peter Tom and John Sweeny.

The plaintiff, Albert Prince, is a self-employed carpenter and artist who makes sculptures using recycled materials. He is involved with the Brooklyn Art Exchange, an arts organization in Gowanus, and has had shows in Trinidad and Tobago and New York City, including a one-man show at the Brooklyn Supreme Court in February 2010.

Prince was stopped by a police officer after taking the antenna from a pile of trash bags on the curb in Brooklyn's Mill Basin neighborhood and putting it in his car. The officer issued Prince a $2,000 notice violation and impounded his car pursuant to §16-118(7)(f)(1)(i) of the Administrative Code, which mandates both the $2,000 fine and the impoundment of any vehicle used in collecting recyclables from a curb.

The law was passed to prevent people from profiteering by picking up large amounts of recyclable materials before sanitation trucks arrive and selling them, depriving the city of revenue. Prince got his car back for a $500 fee in June 2011.

A month after the incident, Judith Stein, an administrative law judge within the city's Environmental Control Board, upheld the $2,000 fine, holding that she had no discretion to reduce it. An appeals panel within the board subsequently affirmed her determination.

Prince then filed an Article 78 petition seeking to vacate the determination. Manhattan Supreme Court Justice Cynthia Kern denied that petition in March 2012, holding that she could not override the mandatory fine imposed by the statute (NYLJ, March 12, 2012).

Prince appealed.

In her opinion reversing Kern's decision, Richter wrote that the Eighth Amendment protects Prince from the mandated fine.

"It is undisputed that Prince violated the relevant Administrative Code provision—he removed and transported a recyclable object using a motor vehicle," Richter wrote. "Nevertheless, under the specific circumstances here, we conclude that the mandatory $2,000 penalty amounts to an unconstitutionally excessive fine."

Richter rejected the city's argument that the Eighth Amendment protection applies only to criminal fines. She said it could apply to civil fines too under some circumstances, citing the First Department's 2007 decision in Matter of Street Vendor Project v. City of New York, 43 AD3d 345.

"The relevant inquiry is not whether the fine arises in the civil or criminal context, but whether the fine constitutes punishment," she wrote. The $2,000 fine, she said, is clearly a punishment rather than a means for the city to recoup a loss.

"The statute's requirement of a mandatory $2,000 fine cannot fairly be viewed as solely remedial," she wrote. "This sizeable sanction is assessed regardless of the amount, or value, of the recyclable materials taken, and bears no relationship to the actual loss sustained by the City as a result of the violation…Particularly where the value of the item taken is minimal, the $2,000 fine undeniably has a punitive element."

Richter continued, "Applying these factors, we find that the imposition of a $2,000 fine for removal of a discarded television antenna from the garbage is grossly disproportional to the offense charged. The seriousness of the offense is relatively minor, as it involves taking a single piece of metal, abandoned by its owner, which likely had little value to the City. There was no significant harm caused by Prince's conduct, and certainly no potential harm to the owner of the antenna, or anyone else in the area, had Prince not been caught.

"Moreover, because the statute contains no discretion and mandates a $2,000 fine in all circumstances, Prince was essentially subject to the maximum punishment for the offense, even though he took a minimal amount of material. The City cannot persuasively argue that a penalty in an amount less than $2,000 would not be an adequate deterrent to a first-time offender like Prince, who is neither a commercial dealer nor someone taking items in bulk."

Prince is represented by Steven Wasserman of the Legal Aid Society, who was not available for comment.

William Gibney, director of special litigation at Legal Aid, called the decision "very reasonable."

He said the ruling is significant because it makes clear that an agency like the ECB "is clearly given broader discretion to fashion a remedy that's appropriate to the events."

The city is represented by Senior Counsels Janet Zaleon and Kristin Helmers of the Law Department's Appeals Division and Assistant Corporation Counsel Ilyse Sisolak of the Administrative Law Division.

"We are still reviewing the decision, but point out that poaching recyclables presents a significant obstacle to operation of the city’s recycling program," Zaleon said in as statement.