[Adopted 11-24-1998 by L.L. No. 29-1998 (Ch. 469, Art. I,
of the 1985 Code)]
As used in this article, the following terms shall have the
meanings indicated:
ALL-TERRAIN VEHICLE or ATV
Any self-propelled vehicle which is manufactured for sale
for operation primarily on off-highway trails or for off-highway competitions
and only incidentally operated on public highways, provided that such
vehicle does not exceed 70 inches in width or 1,000 pounds of dry
weight, as defined in the New York Vehicle and Traffic Law. ATVs shall
not include agricultural vehicles nor any vehicles used for law enforcement,
fire, emergency or military purposes.
[Amended 8-31-2000 by L.L. No. 18-2000]
CLAIMING AUTHORITY
The County Attorney or his or her designee.
[Added 9-7-2022 by L.L. No. 36-2022]
CRIME
A second conviction for a violation of §
822-3A or
B or
C of this article within five years of a previous conviction of a violation of §
822-3A or
B or
C.
[Added 11-19-2002 by L.L. No. 27-2002; amended 12-6-2016 by L.L. No. 38-2016; 12-20-2022 by L.L. No. 9-2023]
INSTRUMENTALITY OF A CRIME
Any property, the use of which contributed directly and materially
to the commission of a crime.
[Added 11-19-2002 by L.L. No. 27-2002]
OPERATE
To ride in or on, other than as a passenger, or use or control
the operation of an ATV in any manner, whether or not said ATV is
under way.
OPERATOR
Every person who operates or is in actual physical control
of an ATV.
PERSON
An individual, and shall not include a police officer, peace
officer or member of the United States Armed Forces acting within
the scope of his public employment or duties.
PUBLIC HIGHWAY
Any highway, road, alley, street, avenue, public place, public
driveway or any other public way.
SEIZING AGENCY
The law enforcement agency seizing the instrumentality of
an operation offense.
[Added 9-7-2022 by L.L. No. 36-2022]
SELL
To sell, exchange, give or dispose of to another, or to offer
to agree to do the same for good and valuable consideration.
[Added 8-31-2000 by L.L. No. 18-2000]
[Amended 8-31-2000 by L.L. No. 18-2000; 9-7-2022 by L.L. No. 36-2022; ]
A. Public property. No person shall operate an ATV on a public highway
or on public property in the County of Suffolk except in accordance
with New York State Vehicle and Traffic Law § 2403.
B. Private property. No person shall operate an ATV on private property
in the County of Suffolk unless he or she has first obtained the express
written consent of the property owner to operate the ATV on the property.
There shall be a rebuttable presumption that the operator of an ATV
on private property in Suffolk County lacks the consent to operate
the ATV if the operator cannot produce written consent from the property
owner.
C. No person shall flee from a police or peace officer while operating
an ATV in Suffolk County. The operator of an ATV is required to stop
or pull over when directed to do so by a police or peace officer,
or by their marked vehicle by the activation of either its lights
or siren. Additionally, no person operating an ATV shall flee from
a police or peace officer at an unsafe speed, recklessly, or in any
manner that would constitute a danger to other motor vehicles, pedestrians
or property.
D. Agriculture. The use of ATVs by the owners of a farm operation, their families or employees, on property owned or leased by the farm operation for the purposes of agriculture production as defined by New York State Agriculture and Markets Law § 301, Subdivision 4, shall be exempt from the provisions of §
822-3B.
[Amended 8-31-2000 by L.L. No. 18-2000; 9-7-2022 by L.L. No. 36-2022]
Any business organization, including but not limited to any individual, corporation, unincorporated association, proprietorship, firm, partnership, joint venture, joint-stock association or other entity of any kind, which sells or offers for sale an ATV to any person within the County of Suffolk for compensation shall disclose, in writing, the restrictions set forth in Subsections
A and
B of §
822-3 by conspicuously posting a statement of these restrictions at each point of sale (all capital letters not less than two inches in height on a contrasting background). The purchaser shall also be provided with a written copy of this statement by the seller at the conclusion of the purchase of the ATV. This statement shall read as follows:
|
IT IS UNLAWFUL TO OPERATE AN ATV ON A PUBLIC HIGHWAY OR ON PUBLIC
PROPERTY IN SUFFOLK COUNTY EXCEPT IN ACCORDANCE WITH NEW YORK STATE
VEHICLE AND TRAFFIC LAW SECTION 2403. WRITTEN CONSENT OF THE PROPERTY
OWNER IS REQUIRED IF AN ATV IS USED ON PRIVATE PROPERTY.
|
[Amended 8-31-2000 by L.L. No. 18-2000; 11-19-2002 by L.L. No.
27-2002; 9-7-2022 by L.L. No. 36-2022]
A. A violation of §
822-3A or
B or
C shall be deemed a criminal violation. The first conviction for a violation of §
822-3A or
B or
C shall be punishable by a minimum fine of $500, with a maximum fine of $1,000.
B. A second violation of §
822-3A or
B or
C, after having been convicted of a violation of §
822-3A or
B or
C occurring within the last five years of the first violation of §
822-3A or
B or
C, shall constitute an unclassified misdemeanor punishable by a minimum fine of $1,500, with a maximum fine of $3,000.
C. A third violation of §
822-3A or
B or
C, after having been twice convicted of a violation of either §
822-3A or
B or
C within the last five years, shall constitute an unclassified misdemeanor and shall be punishable by a fine of $7,500 and/or a term of imprisonment not to exceed 30 days.
D. Willful failure to comply with §
822-4 of this article shall constitute a violation punishable by a civil fine of $1,000 for each violation. Each day or part of a day on which a violation continues shall constitute a separate violation. Section
822-4 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 local social
services department foster parent having custody, of any unemancipated
person under 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 18 years of age.
F. The parent or legal guardian, other than a state or local social
services department foster parent having custody, of any unemancipated
person under 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.
[Amended 8-31-2000 by L.L. No. 18-2000; 11-19-2002 by L.L. No.
27-2002; 9-7-2022 by L.L. No. 36-2022]
A. Upon making an arrest or upon issuing a summons or an appearance ticket for a violation of §
822-3A or
B or
C, or in the event an officer has probable cause to believe a person has committed a violation of §
822-3A or
B or
C and has fled the scene leaving the ATV behind, an officer may seize such ATV. 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 $1,000. 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 §
822-3A or
B or
C of this article and seized by any peace officer or police officer acting pursuant to his or her special duties may be forfeited as hereafter provided. If the ATV is not forfeited, after a second conviction as permitted by §
822-6B(1), the owner may redeem the vehicle only upon payment of a redemption fee of $3,000. Failure to commence a forfeiture action within 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.
[Amended 12-20-2022 by L.L. No. 9-2023]
(1) A civil action shall be commenced by the claiming authority, or his or her designees, against a criminal defendant to forfeit seized property which is used as the instrumentality of a crime if it can be demonstrated that the property was seized in connection with the criminal action of an individual who has been once convicted of a violation of either §
822-3A or
B or
C within the previous five years.
(2) A civil action may also be commenced against a noncriminal defendant to forfeit property which is used as the instrumentality of a crime, 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. A nonoperating owner who is physically present in or on an instrumentality at the time of the commission of a crime, or a nonoperating owner whose ATV was an instrumentality used and operated by a person who has previously been convicted of a violation of §
822-3A or
B or
C, shall be presumed to know that the instrumentality of a crime was or would be used in a manner that would directly and materially contribute to the commission of a crime or that obtaining his or her interest in the instrumentality could assist the operator in avoiding the forfeiture.
(3) All actions commenced under this article shall be governed by the
procedures enumerated in Article 13-A of the New York Civil Practice
Law and Rules, where not specifically outlined herein.
(4) The seizing agency shall send notification of the seizure to all
titled owners, registrants and lien holders 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 business days after the seizure. Such
notification shall inform the recipient that there will be a hearing
before a neutral magistrate to determine whether probable cause existed
for the defendant having been issued a summons or an appearance ticket,
or having been arrested for committing a crime, or in the event a
person has fled the scene of a crime, leaving the ATV behind, whether
probable cause existed that the ATV was used in the commission of
a crime, whether the County is likely to succeed on the merits of
the forfeiture action and whether retention is necessary to preserve
the vehicle from destruction or sale during the pendency of the forfeiture
proceeding, and whether any other measures would better protect the
County's interest during the proceedings, including, but not
limited to: a) issuance of a restraining order prohibiting the sale,
transfer, or loss of the ATV with imposition of appropriate penalties
for violation of said restraining order; and/or b) taking of a bond.
(5) When a hearing is held, the neutral magistrate shall review the documents or other evidence supporting the probable cause for the determination that a crime was committed as defined herein and any other relevant documents and take any testimony to determine whether the seizing agency has sustained its burden of proof as set forth in Subsection
B(4) of this section. If the seizing agency has met its burden of proof, the neutral magistrate shall authorize the continued retention of the property by the seizing agency pending a judicial determination of any civil forfeiture action. Nothing herein shall be construed to preclude a party with a legal interest in the seized property from commencing an action or proceeding in a court of competent jurisdiction for its return. The Suffolk County Executive shall designate neutral magistrates to conduct hearings in accordance with subsection.
(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 seized property under this article shall be commenced within 180 days after the disposition of the summons or appearance ticket or arrest for the crime or, in the instance where no summons or appearance ticket was issued or arrest was made, within the statute of limitations for the underlying crime when the property has first been seized under §
822-6A of this article, 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 Law 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. Failure to commence such an action within the aforesaid time period shall result in the immediate return of the property to its lawful owner. The ATV will be made available for release to the registered owner at the place of storage, subject to payment of reasonable and customary towing, maintenance, and storage fees to the date of release. In the event of a failure to take possession of the vehicle within 60 days after actual notification or by certified mail, return receipt requested, sent to the address of the registrant on file with the New York State Department of Motor Vehicles or another state's equivalent office, if not registered in New York, whichever date is earlier, the vehicle will be forfeited.
(8) In order to establish its case in any action commenced under this article, the claiming authority shall demonstrate, by clear and convincing evidence, that the instrumentality in question is subject to forfeiture at the time of commission of the crime, as defined in this article, 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 proving a lack of knowledge or lack of consent on behalf of said owner or lien holder sufficient to constitute a defense to such forfeiture. If, after a seizure of property has been made under §
822-6A of this article, it is determined that the claiming authority has failed to meet its burden or the nonoperating owner has met the burden set forth hereinabove, then the ATV which constitutes the instrumentality of an operation offense so seized shall immediately be returned to its lawful owner. The ATV will be made available for release to the lawful owner at the place of storage, subject to payment of reasonable and customary towing, maintenance, and storage fees to the date of release. In the event of a failure to take possession of the ATV within 60 days after actual notification or by certified mail, return receipt requested, sent to the address on file to the registered owner with the New York State Department of Motor Vehicles or another state's equivalent office, if not registered in New York, whichever date is earlier, then upon such failure the vehicle will be forfeited.
(9) All property seized pursuant to this article shall be subject to
reasonable and customary towing, maintenance and daily storage fees
as may be established by the Suffolk County Police Commissioner. Such
fees shall be payable to the seizing agency prior to the release of
said property or, in the event the instrumentality of the operation
offense has been transferred to the custody of the Suffolk County
Police Department by the seizing agency, such fees shall be payable
to the Suffolk County Police Department prior to release of said property.
The seizing agency, if other than the Suffolk County Police Department,
shall be reimbursed up to $300 for towing and storage expense actually
incurred, upon disposal of said instrumentality of the operation offense
by the claiming authority, but said reimbursement shall not exceed
money actually received by the Suffolk County Police Department for
its disposition. All towing, storage, and maintenance fees collected
shall be retained by the Suffolk County Police Department and shall
be transferred into a police asset forfeiture fund in a separate nonlapsing
appropriation for law enforcement purposes.
[Added 11-19-2002 by L.L. No. 27-2002; amended 12-6-2016 by L.L. No. 38-2016]
Whenever ATVs are forfeited under this article, the County Attorney,
or his or her respective designee, may transfer the ATV to any County
agency, department, or other political subdivision which demonstrates
a public safety need for the ATV so that the ATV may be put into official
use by that agency, department, or other political subdivision. Any
ATV that is not transferred pursuant to the provisions of this section
shall be destroyed.
[Added 9-9-2011 by L.L. No. 43-2011]
A. No person who has forfeited an ATV pursuant to §
822-6 shall be eligible to purchase any ATV from the County of Suffolk.
B. No person who has had an ATV impounded or seized pursuant to §
822-6 shall be eligible to purchase any ATV from the County of Suffolk until he or she has redeemed his or her ATV in accordance with same.
[Added 11-19-2002 by L.L. No. 27-2002]
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.
[Adopted 3-22-2011 by L.L. No. 33-2011]
As used in this article, the following terms shall have the
meanings indicated:
CRIME
A third conviction for a violation of this article after
having been twice convicted of such violations within the previous
five years.
FOUR-WHEEL-DRIVE VEHICLE
Any motor vehicle, as defined in § 125 of the New
York State Vehicle and Traffic Law, which has four-wheel or all-wheel
driving technology and is designed to be used both on and off public
highways. This term shall not include any tractors, farm equipment
or any vehicles used for law enforcement, fire, emergency or military
purposes.
MOTORCYCLE
Any motor vehicle having a seat or saddle for the use of
the rider and designed to travel on not more than three wheels in
contact with the ground. This term shall not include tractors.
OPERATE
To ride in, use or control the operation of a four-wheel-drive
vehicle.
OPERATOR
Any person who operates or is in physical control of a four-wheel-drive
vehicle.
PERSON
A natural individual. This term shall not include a police
officer, peace officer or member of the United States Armed Forces
acting within the scope of his or her public employment or duties.
PUBLIC HIGHWAY
Any highway, road, alley, street, avenue, public place, public
driveway or any other public way.
SELL
To sell, exchange, give or dispose of to another, or to offer
to agree to do the same for good and valuable consideration.
This article shall apply to all actions occurring on or after
the effective date of this article.