Fight Sanitation Violation Quickly and Inexpensively with Affidavit

According to the sanitation rules and regulations of New York City, owners are responsible for the cleanliness of the sidewalk in front of and adjacent to their property. The sidewalks (including areas like tree pits, grass strips, etc.) and gutter areas (18 inches from the curb into the street) along the building perimeter are required to be kept clean. And sweepings must be picked up and deposited in suitable containers for collection.

Over the years, it has become easier for anybody to report a dirty sidewalk violation, and, as a result, you may have seen a corresponding increase in New York City Department of Sanitation (DOS) notices of violation issued to you. Citizens can make a dirty sidewalk violation request on the DOS Web site or simply call the NYC Citizen Service Center at 3-1-1 to report a violation.

In addition, the DOS employs enforcement agents who patrol all areas including residential blocks at specified times and look for violations for dirty sidewalks, dirty areas, and failure to clean 18 inches into the street. Enforcement agents will issue notices for these violations only during two specified one-hour daily routing time periods; they may issue notices for all other violations at any time. These residential routing times citywide have been set at 8:00 a.m. to 8:59 a.m. and 6:00 p.m. to 6:59 p.m.

The typical fine for a dirty sidewalk violation is $100, and most owners simply admit it, pay the mail-in penalty, and write it off as the cost of doing business in New York City. But you may decide to contest the charges by sending a written defense to the Environmental Control Board (ECB), an independent administrative court that hears cases on violations of city laws, if the notice of violation you receive from the DOS enforcement agent allows for a hearing by mail. In this situation, you’re allowed to include other documents to support your case. And the defense must be signed and notarized.

There’s a way you can fight sidewalk violations inexpensively and without using too much of your time. You can use a standard sworn statement—known as an affidavit. The affidavit describes the super’s regular sweeping schedule, says that the super cleaned according to the schedule on the date the violation was issued, and is signed by the super. Along with the affidavit, you can send a cover letter.

Submitting an affidavit has worked for owners in the past. For example, in one case an owner submitted a detailed affidavit from the building’s super showing that the building was cleaned three times a day and stating what those times were, and it explained that an elementary school on the block made this job very difficult. The ECB found that the owner made reasonable efforts to keep the sidewalks clean and revoked the fine [City of New York v. Bacotti, January 1994].

How to Submit Affidavit and Cover Letter

Instructions for contesting a violation are on the violation notice issued by DOS. You have a choice of submitting a written response to the violation or appearing in person at an ECB hearing. If you decide to use an affidavit and cover letter, the mail-in option takes the least effort. The affidavit should be signed by the person responsible for sweeping the sidewalk—your super, another employee, or you if you sweep your own sidewalk. The signature must be notarized.

What Affidavit Should Say

Your affidavit, like our Model Affidavit: Give Cleaning Schedule When Contesting Sidewalk Violation, should give details on the regular sweeping schedule and show that the schedule was followed on the date of the violation.

Regular sweeping schedule. For a sweeping schedule to be regular, your super (or whoever does this job) must sweep in front of the building at certain times every day. The affidavit should be very specific about your schedule. For example, it shouldn’t just say that the sidewalks are swept two or three times per day. It should give the exact times the sidewalks are swept (for example, between 8 and 9 a.m., 12 noon and 1 p.m., and 5 and 6 p.m.).

Schedule followed on date of violation. The affidavit must state that the person sweeping followed the regular schedule on the date the violation was issued.

What Cover Letter Should Say

Your cover letter, like our Model Letter: Send Cover Letter with Affidavit When Contesting Sidewalk Violation, should:

State that you’re contesting the DOS violation. Identify the number of the DOS violation. This is the number at the top of the violation notice.

Describe the building’s size and location. This information will help show that your cleaning schedule is reasonable.

Say that a regular cleaning schedule is in place. This part of your cover letter basically repeats what’s in the affidavit. State that you have a regular cleaning schedule in place at the building and what that schedule is. Then refer to the affidavit.

State that the cleaning schedule is reasonable. State that the schedule is a reasonable one to keep the sidewalk and street clean, given the building’s location.

What’s a Reasonable Cleaning Schedule?

Unfortunately, proving that someone sweeps regularly and swept on the date of the violation isn’t enough to beat a violation. Cleaning efforts required vary with each case, depending on the type of building, the neighborhood, and the amount of pedestrian and auto traffic. The ECB must find that the schedule described in your affidavit and cover letter is reasonable to keep the sidewalk and street in front of your building clean, given your building’s size and location. There’s no hard-and-fast rule on how often is often enough. But when setting up a cleaning schedule, keep in mind the following general guidelines, based on our review of ECB decisions.

Keep a daily specified schedule. In one case, an owner claimed that two tenants swept and cleaned daily as they entered and left the building, that a landscaper cleaned periodically, and that she cleaned up the area daily. The owner claimed that the trash was thrown on the sidewalk by people coming and going from a deli, fast-food restaurant, and day care center on the block. The owner lost her appeal because she didn't prove that she made reasonable efforts on a daily basis to keep the area in front of the building clean. She didn't describe a regular, daily cleaning routine or specific efforts made on the day the violation was issued. And because the owner described the mixed-use area as having several sources of litter, the cleaning efforts were inadequate [City of New York v. Baker, August 2010].

Once a day or alternate days aren’t enough. The ECB will rarely find that sweeping once a day or on alternate days to be reasonable. For example, in one case, a DOS inspector noted there were newspaper, napkins, and other loose and matted debris on the sidewalk in front of the owner's brownstone building. The owner's son-in-law swept and cleaned the sidewalk and street in front of the building on alternate evenings, and had done so the night before the violation was issued. The administrative law judge ruled against the owner. The owner didn't maintain an adequate daily cleaning schedule and was fined $100 [City of New York v. Griffin, November 2010].

Neighborhood, tenant density, special circumstances are important defense factors. If your building is located in a quiet residential area, sweeping twice a day may be okay. The ECB ruled that the owner of a three-story brownstone on a quiet residential block, who swept twice each day, proved she made reasonable efforts to keep the sidewalk clean [City of New York v. Sullivan, April 1993]. However, an owner of a three-story brownstone on a residential street, with a college, grocery store, pizzeria at the nearby corner, and three blocks away from a large main street, and the block had heavy foot and auto traffic, demanded more cleaning than every other day [City of New York v. Griffin, November 2010].

In another case, an enforcement agent found a large accumulation of white and yellow papers scattered all over the sidewalk one morning between 8 a.m. and 9 a.m. The owner claimed that it kept the sidewalk clean. The owner eventually won the appeal. The tenants had stated that on the night before the violation was issued, a local entity had distributed a large number of flyers on the block. And the owner also stated that it cleaned the area in front of the building at 9 a.m. every day, and more often, if needed. Also, the property consisted of two two-family houses and one three-family house. Given the size of the buildings and tenants' statements, the ECB believed the owner and revoked the fine [City of New York v. Friedman, July 2010].