Avella responds to Sanitation Commissioner

An open letter to city Sanitation Commissioner John J. Doherty (from the Times Ledger):

I received your Aug. 9 response regarding my correspondence on behalf of Ms. Palma Pollizzi.

While I appreciate your attempts to “balance” the issues involved, your response fails to address the fundamental point in question, which is the legality of the implementation of a city Sanitation Department policy regarding the placement of receptacles on residential properties the day before their scheduled collection.

I am aware that Section 16-120(c) of the Administrative Code requires residents to keep their receptacles stored in or at the rear of their buildings until the time of collection. I am also aware of Sanitation’s current policy, as stated in your “Summary of Sanitation Rules and Regulations,” under the “Refuse Collection — Containers and Disposal” section on Page 12, which states in part that “[r]esidential units may place receptacles out for collection on the sidewalk … no earlier than 5 p.m. the day before their scheduled collection, and no earlier than 4 p.m. from Oct. 1 to April 1.”

But as I have said before in correspondence with you, Sanitation implementation of this policy appears to be in violation of the City Administrative Procedure Act, and as such this policy is unenforceable and effectively void because it was not established under the necessary rule-making procedures set forth under CAPA.

Furthermore, Sanitation failed to fulfill the promises that were made to the City Council in April 2006 in terms of properly amending its regulations so that proposed legislation amending Administrative Code Section 16-120(c) became unnecessary on this issue of early placement of refuse receptacles.

As a result, Sanitation is improperly enforcing a “policy” and thereby selectively enforcing the lawful provisions of the Administrative Code, which prohibit the placement of receptacles on non-collection days pursuant to Section 16-120(c). In turn, I find it unlikely that Sanitation would address this improper agency conduct by issuing tens of thousands of tickets across the city for outright violations of Section 16-120(c).

Therefore, I am again requesting Sanitation cease enforcement of this policy and take the necessary steps to either properly establish it as a formal rule pursuant to CAPA’s requirements or abandon this idea completely.

In addition, I am reiterating my request for Polizzi for an exemption from the provisions of Administrative Code Section 16-120(c), given her status as a senior citizen who is reluctant to go outside during the evening hours.

Tony Avella
State Senator
(D-Bayside)