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| Re: Court Fight Against MTA Summons Can Be A Mysterious Process (241606) | |||
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Re: Court Fight Against MTA Summons Can Be A Mysterious Process |
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Posted by BusMgr on Fri Aug 19 14:51:39 2011, in response to Re: Court Fight Against MTA Summons Can Be A Mysterious Process, posted by Terrapin Station on Thu Aug 18 13:27:47 2011. The Transit Authority has had a problem because the act involved in situations like this (i.e., entering a transit facility after having paid the fare but without having "used" a fare collection device) is not a criminal act. Section 165.15(3) of the Penal Law, which otherwise criminalizes fare evasion as "theft of services," a class A misdemeanor, requires that the person so charged have the intent to obtain subway or bus service without payment of the lawful charge therefor. But in fact a person committing such an act has paid the lawful charge, and it is the Authority that has failed to verify that the lawful charge has been paid. Thus, there is no crime.To get around what the Authority considers to be a problem, it has enacted administrative rules pursuant to powers grated to the Authority by Section 1204(5-a) of the Public Authorities Law: "To make, amend and repeal rules governing the conduct and safety of the public as it may deem necessary, convenient or desirable for the use and operation of the transit facilities under its jurisdiction, including without limitation rules relating to the protection or maintenance of such facilities, the conduct and safety of the public, the payment of fares or other lawful charges for the use of such facilities, the presentation or display of documentation permitting free passage, reduced fare passage or full fare passage on such facilities and the protection of the revenue of the authority." (Section 1203-a(3) grants the same powers to MaBSTOA as have been granted to NYCTA. It appears as though MTA Bus Company has no such powers, cannot enforce NYCTA rules on its operations, and it would have to rely upon the Penal Law alone.) The rule quoted by the prior poster was adopted by NYCTA pursuant to such powers granted to it, and has been codified at 21 NYCRR § 1050.4(1). It is interesting to look at it more closely. It specifically proscribes the "use or [entry] upon the facilities or conveyances of the Authority" unless a person does either one of two things: (1) "payment of the fare," or (2) "tender of other valid fare media used in accordance with any conditions and restrictions imposed by the Authority." So what does "payment of the fare" mean? Well, that is defined—sort of—at 21 NYCRR § 1050.2(11): "'Payment of the fare' includes the use at a fare collection device of a time-based farecard for purposes of gaining lawful entry into a facility or conveyance." Since this "definition" uses the word "includes" without any other limiting words, it leaves the open the possibility that there are other things that can constitute "payment of the fare" (and this makes sense because many people make "payment of the fare" on buses by depositing coins in farebox, an act not within this "definition"). More rigidly defined is the definition of "fare" at 21 NYCRR § 1050.2(8): "'Fare' means the lawful charges established by the Authority for the use of its facilities." Thus, someone who acquires an "unlimited" MetroCard by paying the lawful charge therefore has paid a "fare" within the meaning of Section 1050.2(8), and has arguably made "payment of the fare" within the meaning of Section 1050.2(11). And what about the other condition, "tender of other valid fare media used in accordance with any conditions and restrictions imposed by the Authority." There is no rule defining "tender" so the ordinary definition of "offering" should apply (and under that ordinary definition the other party need not "accept" the offer for a "tender" to have been made). Now such tender must be made by using other fare media (e.g., MetroCards) in accordance with the Authority's conditions and restrictions. Where are those conditions and restrictions? Section 1204(5-a) of the Public Authorities Law permits the Authority to adopt rules regarding "the presentation or display of documentation permitting free passage, reduced fare passage or full fare passage on such facilities," I see no such rule that requires a person to insert a MetroCard into a fare collection device and receive a printed receipt therefore as necessary for a valid tender. So now let's look at the provision of Section 1050.4(1) that was emphasized by the prior poster. It says, "it shall be no defense to a charge of a violation of this subdivision that fare media, a fare media sales device or a fare collection device was malfunctioning." Now, a defense to a violation of Section 1050.4(1) might be that the charged passenger did in fact make "payment of the fare." Such a defense would be supported by evidence showing that the passenger paid "the lawful charges established by the Authority for the use of its facilities." For this defense there is no need to rely upon the fact that there was any malfunctioning device. That is, the fare was paid regardless of the status of any any particular device. Another defense would be that the MetroCard was "tendered." That an Authority machine that malfunctions might mean that the Authority is unable to accept a tender, but the fact that a machine has malfunctioned does not affect the tender itself. In other words, there is no need to rely upon a defense that a device is malfunctioning since the tender was complete when the MetroCard was presented and without regard to any Authority acceptance of the MetroCard. I think the prior poster is correct to the extent that the Authority would like to place the burden on passengers when its own machines malfunction. But since that very concept is inherently unfair, it requires significant convolution of the law to effectuate that result. I don't think the Authority has sufficiently convoluted the law. Nonetheless, it is likely that the administrative law judges at the Transit Adjudication Bureau will either implement the intent of the the Authority notwithstanding the failure of the rules to express that intent, or that those judges will simply adopt a simplistic reading of the rules without going through the more rigorous analysis above. |
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