Despite evidence to the contrary, the de Blasio administration has repeatedly assured New Yorkers that the NYPD's crackdown on illegal e-bikes is targeting businesses, not the delivery cyclists who use the devices to do their jobs. “Those at the top of the food chain need to be held accountable," the mayor told reporters in October of 2017. "That’s why instead of merely targeting riders, we’re going after businesses that look the other way and leave their workers to shoulder the fine.”
Yet in at least three cases this year, the NYPD has taken legal action to confiscate bikes and impose $500 fines on working cyclists, even after city legal officials initially tossed out the penalties.
City law states that "a business using a bicycle for commercial purposes shall be liable" for fines incurred by its workers, a fact raised by the hearing officers at the Office of Administrative Trials and Hearings (OATH) when they dismissed the $500 citations against the three separate cyclists in August and November of 2018.
"He came to the hearing the day after the incident to retrieve his impounded e-bike since he needs to use it for work," reads one OATH account obtained by Gothamist, of a cyclist who was pulled over on West 29th Street in August. "His boss knew he was driving an electric bike."
"He was making a delivery for his employer when he was stopped," reads another account of a cyclist pulled over on Eighth Avenue near West 19th Street in November.
"He works as a delivery person for a company called Relay," the third account states about a cyclist pulled over on Eighth Avenue and 26th Street.
In all three cases, the NYPD appealed, arguing that the law doesn't just make businesses liable for e-bike penalties, and that the hearing officer's interpretation of the rules—making businesses, instead of workers liable for e-bike fines—"would make [the law] unenforceable."
Yet employer liability is the NYPD's own interpretation of the law, according to a directive that had previously been sent out to every uniformed police officer on November 20, 2018. After an officer pulls over a cyclist for an e-bike infraction, police are supposed to determine if they are on the job. If they are, police are instructed to "respond to [the] business location if within a reasonable distance." Failing that, officers are required to mail a summons to the business.
Two of the initial OATH rulings were issued one week after the NYPD issued its memo, which was not made public until Gothamist published it in January. The Environmental Control Board, which handles OATH appeals, subsequently agreed with the NYPD in all three cases, rejecting defense attempts to introduce the NYPD memo because of a rule barring evidence that was not present at initial proceedings from being considered in appellate decisions.
"I think they’re misinterpreting the statute, I think the statute was clearly intended to shift the fines to the business owners, where the bike is being is being used by a business," says Steven Wasserman, a Legal Aid attorney who represented two of the cyclists.
"It’s such an unfair and hyper-technical approach to the law to allow [the NYPD] to hide the ball and then continue to hide it at the appellate stage," says Steve Vaccaro, an attorney and safe streets advocate who frequently represents cyclists. "It’s entirely wrong."
Vaccaro adds, "If the agency responsible for the enforcement of the law says in writing that it is possible and required as a matter of policy, who is this judge to say that it is impossible? And how could NYPD be permitted to traipse into the appellate tribunal and say it is impossible to follow the policy, when it is NYPD's own written policy?"
The NYPD is one of the members of the ECB, but an OATH spokesperson, Marisa Senigo, said that in cases like these the NYPD's representative is not part of the ECB's appellate decision.
“OATH does not have the power to say a law or rule is fair or unfair," Senigo said in a statement. "OATH has the power to apply the law and rules without bias and with neutrality by providing a fair and equal hearing and appeal process for all parties, determining what facts occurred and what legal interpretation is applicable to those facts."
The NYPD referred comment to City Hall. A spokesperson for Mayor Bill de Blasio provided this statement to Gothamist: "The Mayor has been clear that enforcement of this law should focus on businesses, not workers."
The de Blasio administration has not provided any evidence to show that throttle-powered e-bikes, which are favored by delivery workers, are any more dangerous than the electric pedal-assisted e-bikes used by Citi Bike, that are legal.
"Well it may be true there has not been a definitive study," de Blasio told Brian Lehrer in August. "But I will tell you having talked to people all over the city, I’ve been to 57 town hall meetings, and talked to police leaders in a number of precincts there is a very consistent view that they’re too fast for what they are being used for."
Wasserman said he intends to appeal his two cases. All three cases appear to have originated in the NYPD's 10th Precinct.
You spoke at our last Build the Block Meeting & we listened! Steady sector “B” observed an electronic bicycle around West 23 Street & 8th Avenue and took action! Remember, E-Bikes are dangerous & prohibited in New York City! #VisionZero pic.twitter.com/NIj6uqcfTJ
— NYPD 10th Precinct (@NYPD10Pct) January 17, 2019
"These OATH cases demonstrate how New York City bends over backwards to target and police immigrant delivery workers on e-bikes just doing their jobs," says Dr. Do Lee, a member of the #DeliverJusticeCoalition who wrote his PhD thesis in environmental psychology on delivery cyclists at the CUNY Graduate Center. "This stands in appalling and discriminatory contrast to the spectacle of privileged New Yorkers expressing their unbridled joy in riding 4,000 new Citi Bike e-bikes."