Download the complaint form and fill it out. Time from/to as h:mm AM/PM; no seconds needed.
Save the signed complaint form (as a pdf) and video in a single folder. Suggestion: give the folder a number and keep all the data in a spreadsheet, with the row getting the corresponding folder number.
You should upload this folder to a Dropbox folder in your “public folder”. Share the link to that folder to citizenidlinghelp@dep.nyc.gov
DEP provides detailed instructions about how to fill out summonses. Filling out the summons by hand is the best way to e nsure it is done correctly.
It is very important to name the Respondent (entity or person in violation of the Noise Code) correctly. The landlord usually cannot be held liable for a tenant violating section 24-244(b) of the noise code. Use a working mailing address. For mobile food vendors you need to use the posted FV number, and file a Freedom of Information Law request for the license holder’s name and mailing address from the Department of Health. The general rule, however, should be to name the place of business at its physical address, and use that address for service, as well.
DEP must review your complaint(s) within 30 days. They may say it’s frivolous, which ends the complaint process. They may tell you that they will pursue the case. The third option is that the citizen reporter is allowed to pursue the case ("self-prosecute"). If you are allowed to self-prosecute, DEP will arrange for a date and time for you to pick up the summons form from the DEP office in Queens (on Junction Blvd at LIE). You will not get the forms delivered and you cannot pick them at your borough office, and you cannot print them yourself on blank paper. Each form already has a summons number. The agency tracks which citizen gets which number.
Section 24-213 of the NYC Noise Code regulates service of papers. Mailing by first class mail is fine, and is the default option.
The reverse side of the OATH summons form contains an affidavit of service (pictured). There are problems with that form:
It asks you to swear that the deponent is not a party to the action, which conflicts with your role as a citizen petitioner and the award you stand to receive from successful pursuit of the complaint.
It requires an affidavit, administered by an officer. OATH rules do not require an affidavit. Why should citizen reporters have to provide this proof? It is unclear what is meant by "Certifying Officer Administering the oath." A typical notary public is not an officer.
As a solution to this apparent dilemma, some citizen reporters have printed “affirmation” labels and placed them over the form on the reverse side of the OATH summons and have not encountered any problems at OATH.
A sample of the language used in such an "affirmation":
I, [FULL NAME], affirm under penalty of perjury that I served a true copy of this Summons in accordance with §24-213 of the NYC Administrative Code upon the Respondent named herein by depositing a true copy of the above-referenced Summons enclosed in a prepaid, sealed envelope, first-class mail, properly addressed to the Respondent, in an official depository under the exclusive care and custody of the United States Postal Service. Said copy was mailed on [DATE.]
_________________________
Print Full Name
Mail the OATH summons(es), with your certificate of service on the back of the form to FedCap Rehabilitation Services for scanning and data entry. DO NOT USE A SEPARATE DOCUMENT AS IT WILL NOT BE PROCESSED. You will get the instructions from DEP.
There is really only one section of the NYC Noise Code that you can complain about under the authority granted to you via Section 24-261, and that is Section 24-244(b):
Attend the hearing. On the day of the hearing, you may need to be available in person or by phone to testify. Think of yourself as being "on call" for phone testimony that day (which may be multiple days in the event of reschedules, adjournments, etc.).
You can download this Google spreadsheet to track the status of your cases:
Enter your summons number in the left column. Copy the fields from the other columns to all the rows with your summons numbers.
You can request an award payment once the Respondent has paid the penalty.
You need to submit a W9 to the city, as the city will produce a 1099 statement for the payments you received. You might be able to argue for a one-off award to be tax-free, but generally expect these payments to be taxable like freelance income. Once you note that the respondent has paid the assessed fine(s), you can email ECBRevenue@oath.nyc.gov with the summons number and ask for your award payment. If you have pursued the case yourself you only need to inform OATH that your name is on the summons form, which they can look up. If DEP has prosecuted the case then you must provide OATH with some proof (such as a DEP email acknowledging receipt of your initial complaint and that they are pursuing it ) showing that you are entitled to the money, as opposed to another citizen complainant or no one at all. Asking for money is no guarantee of getting it, so you need to track that, too.
Record video at the site of the noise violation. Ideally, the video shows audio speaker(s) in use. Shoot from a position close to the speakers to show that the violating music/sound is coming from there. Document that you can hear the sound from the public right of way. Remember, your recording will not provide spatial perception. Pan slowly around to show that there are no likely alternative sources for the sound you are recording.
Some hearing officers will try to discredit your observations and evidence. Avoid noises coming from you or your camera, like fabric rustling or fingers moving. Make slow movements so an unfamiliar viewer will maintain orientation the first time they view the recording. Try to capture something in the video to identify the location/respondent, in order to avert alternative narratives such as “the music is coming from somewhere else” or “we had a good reason to use the speakers”.
Videos are typically about 30 seconds, but it sometimes helps to wait for better sound (less passing traffic, or there is a long pause between songs, etc.) The file size is not important at this time.
You do not need to show a speaker if the speaker is hidden (in the awning or among merchandise). You do not need to make sound measurements - if it is audible enough to attract the attention of the general public then it qualifies. It does not need to be a speaker: musical instruments, for example, have also been confirmed to be “sound reproduction devices” for the purposes of section 24-244(b). Unamplified human voices, however, are exempt.
"No person shall operate or use or cause to be operated or used any sound reproduction device, for commercial or business advertising purposes or for the purpose of attracting attention to any performance, show, sale or display of merchandise, in connection with any commercial or business enterprise (including those engaged in the sale of radios, television sets, compact discs or tapes), (i) outside or in front of any building, place or premises or in or through any aperture of such building, place or premises, abutting on or adjacent to a public street, park or place; (ii) in or upon any vehicle operated, standing or being in or on any public street, park or place; (iii) from any stand, platform or other structure; (iv) from any airplane or other device used for flying, flying over the city; (v) from any boat on the waters within the jurisdiction of the city; or (vi) anywhere on the public streets, public sidewalks, parks or places where sound from such sound reproduction device may be heard upon any public street, sidewalk, park or place. Nothing in this section is intended to prohibit incidental sounds emanating from a sporting or an entertainment or a public event for which a permit under section 10-108 of the code has been issued."
Generally, OATH, i.e. the Environmental Control Board and Hearing Officers, rely on a five-prong test outlined in a landmark ruling by the New York State Supreme Court in NY County (GH VILLE INC. v. NYC ECB, November 15, 2002):
"This Code contains five "prongs" as the basis for a violation: first, the sound must emanate from a reproduction device; second, it must be for commercial or business advertising purposes; third, the sound must be in connection with a commercial or business enterprise; fourth, the sound reproduction device must be in front or outside a building or in or through any aperture of such building; and fifth, the sound must be heard on any public street."
