The judge will hear your 223,000 excuses now

Most people simply pay them and get on with their lives. But there are those who choose to fight.

About a thousand times a day across New York City, a judge clutching a skinny file folder enters a waiting room, calls out a name and leads a defendant back to a little office furnished with only a desk and chairs, computer and printer, and a window that looks out on a windowless hallway.

The judge turns on a recorder, reads a summons into the record and asks the defendant: Tell me your story.

Hoi Eng Chan does not know how all those unbundled un-broken-down cardboard boxes wound up in front of the house she owns in the Bronx. It is near the subway, so a lot of people throw trash there.

Aminur Howlader concedes that the rice in the steam table of the Halal food cart he operates was being held at less than 140 degrees, but he was going to throw it out. He had already made a whole other cooker of rice and was serving from that instead.

As for Howlader’s other summons, the cart was indeed parked less than 20 feet from a door of the Target on Avenue H, but that door is used only by employees when the store is closed, which it wasn’t. He has been parking in that spot for nine years and never got a ticket.

This is life at OATH, a little-known but ever-expanding branch of the municipal justice system. OATH, the Office of Administrative Trials and Hearings, handles the violations of 13 city agencies, from the health department to the Fire Department to the Business Integrity Commission. OATH hears about 100 times more cases than all the criminal courts in the city put together.

A day spent in the hearing rooms of an OATH office — there is one in each borough — offers both a voyage into the small intestine of bureaucracy and a front-row seat at an endless and sometimes heartbreaking parade of excuses and ostensibly exculpatory explanations.

Sometimes injustice is exposed and defeated. Sometimes it is as if a pack of homework-eating dogs is roaming the streets.

The folding table from which Liudmyla Sviderska was selling pastries without a permit on Brighton Beach Avenue was not a mobile food cart, her representative said. Also, they were just pastries from a nearby bakery that got an A on its health inspection. Also, the pastries were individually wrapped and not potentially hazardous.

Everyone else on 23rd Road also lets their tenants park illegally on the side of the house.

Hector Sanabria would have pleaded not guilty to the open-container summons but does not remember what happened that day.

If courthouses, with their columns and marble and carved mottos, are built to inspire awe at the majesty of the law, the aesthetics of an OATH hearing center, with its box-office windows and crowd-herding cordons, will be immediately familiar to anyone who has done time at the DMV.

The judges do not wear robes or carry gavels. They are per-diem city lawyers in business attire and are known as hearing officers.

Defendants — they are called respondents — may bring a lawyer, but most do not. The agency that issued the summons can send a representative, and some routinely do. But the Sanitation Department, which accounts for nearly half the summonses heard at OATH, nearly never sends anyone. Nor does the Police Department, another leading summons source. So most of the time, it is just the respondent and the hearing officer in the little room.

It is not Arjan Gjushi’s fault if the subcontractors brought their dumptrucks to the site more than an hour early and blocked Featherbed Lane.

It is not Metin Kurtulus’ fault if patrons of the bodega next to his vacant lot throw their empty bottles over his fence, especially after he chained his own trash can to a post for them to use and someone stole it.

Strokos Gourmet Deli has fired the exterminator responsible for the 46 live fruit flies a health inspector observed on a recent visit.

Over the course of many hearings, patterns of excuse emerge. Very frequently, they hinge on evasion or transfer of blame. This is a risky legal strategy.

“A lot of people can’t distinguish between being responsible for something and being at fault,” OATH’s commissioner, Fidel F. Del Valle, said in an interview in his office on Church Street in lower Manhattan. “'At fault’ is the person who put the crap in front of your house. But if you’re the owner of the property, you’re responsible for policing the front of your house.”

Many respondents are tempted to try a kitchen-sink defense, offering the judge multiple reasons to find that the preponderance of the evidence (more than 50 percent) indicates a lack of guilt. It can backfire, as Jose Lopez, accused of possessing an open 24-ounce can of Coors beer inside Sunset Park on a balmy December afternoon, demonstrated at the Downtown Brooklyn OATH office on Jan. 19.

First he told the hearing officer, James A. DeVito, that the police saw the beer can by his feet and decided it was his even though it belonged to a friend.

Then he said he was not drinking beer because he was with his wife. Then he said he did have his friend’s beer in his hand briefly, but only to move it, as a favor to his friend, because he saw the police coming.

“I told them that I was just moving it over, but it was not mine and I was just going home with my wife,” he said through a Spanish interpreter who was patched in on speakerphone.

“I do not credit the respondent’s testimony,” DeVito wrote in his decision sustaining the summons.

Photographs and other documentary exhibits may be submitted but are not always helpful, either.

The photos show that Skyline Developers’ workers were just washing their truck, not pouring concrete, at the time the summons was issued. They were not in the act of working.

The photo Inessa Malamud submitted shows that there was not a summonsable amount of trash between her driveway and stoop, only four sheets of crumpled paper, two crushed plastic bottles, a small flattened box, a coffee-cup lid, a padded yellow mailing envelope and a shopping bag of supermarket flyers.

“One of the odder pieces of evidence we got was from someone who had gotten a summons from the department of health for having a rat infestation on her property,” said James Moore, a supervising hearing officer. “Her entire defense was that ‘I have many cats on the property to control the rat population.’ She submitted photos of all her cats. Except that two of them were raccoons.”

“As a practical matter,” he added, “having a bunch of cats is not an acceptable rodent abatement plan.”

Last year, OATH opened a help center at each office, where respondents can go to have charges explained and get a primer on procedure.

A help center worker might tell the respondent about some common defenses, like the “reasonable effort” defense — since you can’t be expected to clean the sidewalk in front of your house 24 hours a day, if you testify that you regularly clean twice a day, that is often sufficient.

Your odds of beating a ticket at an OATH hearing are not bad: 44 percent of the 223,000 summonses that were contested last year got dismissed, up from 39 percent the year before.

OATH was created in 1979 to provide an independent alternative to internal agency tribunals that tried their own cases and were often criticized as biased. Initially, only more complex trials were heard at OATH. But over the last 10 years, more and more agencies’ routine charges were transferred to its jurisdiction.

Last summer, when the police began issuing civil rather than criminal summonses for quality-of-life offenses like public drinking and urination and making noise, those came under the OATH umbrella, too.

Some agencies have bristled at the loss of control and complain OATH hearing officers are too sympathetic, Del Valle said.

“When you don’t send someone and the respondent puts up a credible, viable defense and there’s no one from the agency to impeach it, it’s very likely that the summons will be dismissed,” Del Valle said. “One agency was arguing, ‘How can that be?’ And our response is ‘Where’s the evidence that rebuts the defense?’ And the guy says, ‘Here’s the evidence — the summons — the summons is proof!’ No, that’s the allegation; the summons isn’t proof.”

On the evening of Nov. 28, a police officer approached Jorge Guillermo on Hughes Avenue in the Bronx and charged him with violating section 16-118(6) of the city’s administrative code. “Defendant was found to be urinating on a public sidewalk,” the summons read.

At his hearing in January, Guillermo, 42, testified he is a locksmith who had just finished a job and was waiting between two parked cars for his co-worker to pick him up when the officer accosted him.

“I showed him my tool bag,” he told the hearing officer, Rhonda Leader. “I showed him the work order. He said, ‘I thought you were breaking into this car.'” Then, Guillermo said, the officer asked if he had been urinating, and though he answered that he had not, the officer gave him a ticket.

“I do kind of believe him because he sort of painted a detailed picture,” Leader said after Guillermo had left. “It’s a tough one. This” — she held up the summons — “is basically ‘the preponderance of evidence,’ but if you believe somebody, you believe them.” She dismissed the ticket.

Sheikh Sohail could not have been blocking a bike lane with his cab at 6:30 p.m. because his Uber log shows that at 6:34 p.m., he was seven blocks away.

Qiong Zhen Ng’s trash cans had their lids securely attached to prevent spillage when he left for work in the morning and when he came home that night.

Bruce Nixon was almost done with his beer when the officer walked up, and though he explained he had just learned he would be moving from a homeless shelter to an apartment and his friend had bought him a beer to celebrate, she gave him a ticket anyway.

Most OATH hearing officers are paid $51 an hour and barred by the city from working more than 1,000 hours a year, lest they qualify for Civil Service benefits. They must have “three years of recent satisfactory relevant legal experience” and attend a two-week orientation.

They do not specialize and may be called upon to interpret any of thousands of pieces of agency code. Some are near the beginning of their legal careers, while others are retired government lawyers with decades of experience — former prosecutors, assistant attorneys general and the like. Those who have other legal practices may keep them if cleared by OATH administrators.

“This is the greatest legal training ground — in 10 years I’ve learned so much about how to adjudicate,” said Patrick Mercurio, a hearing officer in the Bronx. “I’m doing exactly what I’d like to do. I’d just like to do it someday in an actual courtroom.”

While the job carries little prestige, the hearing officers understand that for most people who appear before them, they are the face of the legal system.

“I may be the only person that someone like this respondent ever sees in the realm of the law,” said Loren Luzmore, a Manhattan hearing officer since 2013. “It’s really important to me for him to feel heard and respected.”

The care lavished on a summons at OATH can seem almost disproportionate when the justice system in the city is so often burdened with backlogs and delays. Even a $25 nuisance summons gets a formal written decision that recites and evaluates all of the respondent’s arguments.

In January, Martha Rosa, 68, appeared before Mercurio in the Bronx on a $100 summons for failure to shovel snow in a timely fashion. She said that her 76-year-old husband had done his best.

“He cleans the snow, but he doesn’t clean everything,” she said. She added that she had since purchased a snowblower.

“I believe that he tried to make a path,” Mercurio said afterward. “He probably didn’t do a great job. But we try to err on the side of giving them a break, especially older people who’ve been living here for years. It’s just a matter of respect.” He dismissed the summons.

Some summonses disintegrate under scrutiny.

Benedetto Savino was charged in December with allowing an unlicensed dog-grooming business to operate in his building on Webster Avenue in the Bronx. The health department’s evidence was a permit that said it was issued in 2017 but expired in 2016. “This is almost bizarre,” Mercurio said. He dismissed the summons.

On Jan. 24 of this year, if his testimony is to be credited, Charles Oehlmann, a 72-year-old retired Con Edison worker, went to sleep at his home on Staten Island around 10 p.m. with the garbagemen still not having come to collect his trash. At 1:45 a.m., an inspector issued him a $100 summons for leaving his trash out on a noncollection day.

“I don’t know what I’m supposed to do,” he told the hearing officer. “It seems a little ridiculous. Am I supposed to set my alarm for after midnight?”

His wife, he added, had checked the city’s rules, which state plainly that if garbage is collected after 4 p.m., you have until 9 a.m. the next day to retrieve your trash cans. He was acquitted.

But other cases stand up. On Dec. 9, a young man walked into Temal Discount Grocery on 120th Avenue in South Ozone Park, Queens, and asked for a pack of Newports. Rickie Temal, the owner, sold them to him. An older woman approached the counter. She was a Department of Consumer Affairs inspector. The young man was her plant. He was 17. Temal was issued a $1,000 summons for selling tobacco to a minor.

At his hearing in Manhattan, Temal argued that the customer looked at least 24.

“He’s a bearded macho man — I shouldn’t be asking him for an ID,” he said. “Do I want someone to curse me out?”

“You’re supposed to ask if they look like they’re under 30,” the inspector, Barbara Murray, said.

Temal grew indignant. “They came in just to fool me so they can make a violation,” he said. “So you guys work with kids to fool the entrepreneur of the business?”

“No,” Murray said. “The inspection is to catch you doing what you normally do.”

Temal gathered his thoughts.

“If by chance this honorable judge and honorable inspector find me guilty,” he said, “I beg for leniency.”

This article originally appeared in The New York Times.

The judge will hear your 223,000 excuses now

Last year, not counting parking and red-light tickets, the city handed out more than 877,000 noncriminal summonses.

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