[Added 10-20-2021 by Ord.
No. 79]
For the purpose of this article, the following terms shall have
the meanings indicated:
The cost of towing or hauling an off-road vehicle and storage
charges not exceeding $45 per day for each day the off-road vehicle
is impounded.
All-terrain vehicles (sometimes known as "ATVs") as that
term is defined in § 2281 (1) of the New York State Vehicle
and Traffic Law, off-highway motorcycles as that term is defined in
§ 125-a of the New York State Vehicle and Traffic Law, motocross
or dirt bikes, dune buggies, go-carts, minibikes, golf carts and any
and all other types of motorized trail bikes or vehicles that are
manufactured for sale or operation primarily on off-highway trails
or for off-highway competitions and are only incidentally operated
on public highways. Nothing contained herein, however, shall be deemed
to apply to or prohibit the use of bicycles. Furthermore, pursuant
to and consistent with New York State Vehicle and Traffic Law §§ 2281
(1)(b) and 125 the term "all-terrain vehicle" or "ATV" shall not include
any vehicle used for agricultural purposes or for snowplowing, farm
equipment, including self-propelled machines used exclusively in growing,
harvesting or handling farm produce, and self-propelled caterpillar
or crawler-type equipment while being operated on the contract site;
police and fire vehicles other than ambulances.
To ride in or on, other than as a passenger, or use or control
the operation of an off-road vehicle in any manner, whether or not
said off-road vehicle is under way.
The greater part of credible evidence. "Credible evidence"
means the testimony or exhibits that are found to be worthy to be
believed. Preponderance does not mean the greater number of witnesses
or the greater length of time taken by either side. The definition
refers to the quality of the evidence, that is, its convincing quality,
the weight and the effect that it has on the finder of fact. In order
to establish a preponderance of the credible evidence, it must more
nearly represent what took place than the evidence opposed to it.
In the event that the credible evidence weighs so evenly that finder
of fact is unable to say that there is a preponderance on either side,
then no preponderance has been established.
Any highway, road, alley, street, avenue, public place, public
driveway, or any other public way.
(a)
Public property. No person shall operate an off-road vehicle
on a public highway or on any public property in the City of Utica,
including but not limited to sidewalks and City parks.
(b)
Private property. No person shall operate an off-road vehicle
off a public highway on private property in the City of Utica unless
such person has first obtained the express consent of the owner or
occupant of such property to operate the off-road vehicle on the property.
There shall be a rebuttable presumption that the operator of an off-road
vehicle on private property in the City of Utica lacks consent to
operate the off-road vehicle on private property.
(a)
Any person who operates an off-road vehicle in violation of this article shall be guilty of an offense punishable by Utica City Code Section 2-1-7.
(b)
In addition to the penalties set forth in Subsection (a) of this section, a police officer may immediately impound an off-road vehicle that has been operated in violation of Section 2-16-401(a) or (b) of this chapter. Such impounded off-road vehicle shall be stored by the pertinent police department or enforcement agency pending the identification of the owner of such off-road vehicle as registered with the New York State Department of Motor Vehicles. Such title 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, return receipt requested, within five days after the impoundment. If the off-road vehicle is not registered with the New York State Department of Motor Vehicles, then the pertinent police department or enforcement agency shall send notification to the possessor of the off-road vehicle at time of impoundment. Neither the police department impounding such off-road vehicle, nor the City of Utica, nor any agent nor employee thereof, shall be liable for any damages arising out of the provision of an erroneous name or address of such owner.
(c)
Notification sent by the pertinent police department or enforcement
agency shall inform the recipient that there will be a hearing promptly
scheduled before the Public Safety Commissioner and two City of Utica
employees designated by the Public Safety Commissioner to serve for
a term of one year, to determine whether there is a preponderance
of evidence that the person who has been issued an appearance ticket
did indeed operate an off-road vehicle in violation of this article.
Additionally, if the off-road vehicle is not registered, the hearing
will also determine by a preponderance of evidence who the lawful
owner of the off-road vehicle is, and there shall be a rebuttable
presumption that the possessor at the time of the impoundment of an
unregistered off-road vehicle is the lawful owner. If the off-road
vehicle is registered, then there is an irrebuttable presumption that
the registered owner is the lawful owner. At the hearing, the City
of Utica has the burden of proof.
(d)
Service of said notice shall be made upon the registered owner
of the off-road vehicle by certified mail, return receipt requested,
and first class mail to the address provided on said registration;
in the event that the off-road vehicle is unregistered, service of
said notice shall be by certified mail, return receipt requested,
and first class mail to the last known address of the possessor of
said off-road vehicle at the time of the impoundment. The notice shall
include the date, time and place of hearing.
(a)
When a hearing is held, the Public Safety Commissioner shall
review the credible evidence which may include but is not limited
to exhibits and take any testimony necessary to determine whether
the City has sustained its burden of proof.
(b)
Any party may move the Public Safety Commissioner to issue subpoenas
for said hearing, and a failure to comply with the terms of an issued
subpoena shall be enforceable as contempt through the New York State
Court System. Filing of an action for contempt with the New York State
Court System shall stay the underlying proceeding until the New York
State Court System fully adjudicates the contempt action.
(c)
The Public Safety Commissioner shall issue a written decision
determining if the City has met its burden of proof as to both ownership
and the violation, and if so what remedial measures will be imposed.
Such remedial measures are payment of a redemption fee not to exceed
$2,500, exclusive of the associated fees, payment of the associated
fees, and/or forfeiture of the off-road vehicle pursuant to the New
York State Home Rule Law § 10(4)(b). If the Public Safety
Commissioner orders the payment of fees, then there must be a deadline
for the payment of said fees, and provision for forfeiture of the
property if the deadline for payment of the fees expires.
(d)
Said hearing shall be stenographically recorded. The City shall
retain custody of exhibits received into evidence until the time to
appeal has expired.
(e)
The written decision of the Public Safety Commissioner shall
be served on the parties to the proceeding by certified mail, return
receipt requested, and first class mail. Services shall be deemed
completed once both mailings are transferred to the custody of the
United States Post Office. Service of the said written decision will
begin the time to appeal.
(a)
Failure to commence a hearing within 120 days of the impoundment
shall result in the immediate return of the property to its registered
owner and in the event of an unregistered off-road vehicle, to the
possessor of it at the time of the vehicle's impoundment. The off-road
vehicle shall 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.
An appeal of the decision by the Public Safety Commissioner
is taken by Article 78 of the New York State Civil Practice Law and
Rules to the Oneida County Supreme Court. Such an appeal shall automatically
stay any of the remedial measures prescribed by the Public Safety
Commissioner.
Whenever any off-road vehicle which has been impounded by the
Department of Police remains in the possession of the Department and
the vehicle has been forfeited, and the time for appeals has expire,
such vehicles may be:
If the remedial measures by the Commissioner of Public Safety
include the payment of fees, said fees shall be made by secure funds
to the City of Utica Comptroller. Upon receipt of the secure funds,
the City of Utica Comptroller shall issue a receipt to the payer stating
that the fees have been satisfied and forward the same to Corporation
Counsel and the City of Utica Police Department. Upon receiving said
receipt, the City of Utica Police Department shall immediately release
the off-road vehicle to the registered owner but in the event that
the off-road vehicle is unregistered, the off-road vehicle will be
released to whomever the Commissioner of Public Safety found the lawful
owner to be.
The Chief of Police is charged with the enforcement of the provisions
of this article.
(a)
If any clause, sentence, paragraph or part of this article or
application thereof to any person or circumstances shall be judged
by any court to be invalid, such judgment shall not affect, impair
or invalidate the remainder thereof or the application thereof to
other persons and circumstances but shall be confined in its operation
to the clause, sentence, paragraph or part thereof and the persons
or circumstances directly involved in the controversy in which the
judgment shall have been rendered.
(b)
Nothing in this article shall be interpreted to conflict with
the New York State Vehicle and Traffic Law and New York State Agriculture
Markets Law and should a court of competent jurisdiction find that
there is a contradiction between the two, the New York State Vehicle
and Traffic Law and New York State Agriculture and Markets Law shall
remain supreme.
This article shall take effect upon final passage by the City
of Utica Common Council.
