Living and working in NYC frequently means being fined and ticketed for all sorts of alleged offenses. Being a NYC plumber and performing sewer and water main repair work in the roadway makes you even more visible and prone to receive such notices of violation (NOV’s). Balkan Sewer And Water Main Service is such a firm and routinely receives violations from the NYPD, TIU (Traffic Intelligence Unit), and the NYC DOT.
What many people do not realize is that unlike criminal court, ECB (Environmental Control Board) court hearings the defendant is presumed guilty until proven innocent. The fact that a violation was written by a ‘professional’ who witnessed the infraction places the onus on the defendant to disprove it, the act of writing the violation becomes the ‘prima facie’ of the case. Needless to say it is quite difficult to disprove a negative or that something claimed to have occurred never happened.
Balkan was faced with just such a situation when the TUI who are under the guidance and employ of the NYPD wrote $3,300.00 in violations for Manhattan water main work which took place on Ludlow Street. The violations were for working without a permit and closing off part of the roadway. Balkans issue was that work had been completed, the roadway paved, and the sidewalk cemented 10 days before the violations were allegedly witnessed. They had to prove that something did not happen on a certain day and that their firm was not on the site at that time. In addition a lawyer had to be hired to represent them in Court. In this particular case Balkan was made aware of the alleged offense when Officers came to their office and served them almost 4 months after the violations supposedly took place. This only added to the difficulty of defending the case.
Defending the case
Defending a case like this is an arduous task. It meant accumulating all sorts of documents to make the defense compelling and overwhelming. Valuable resources and funds had to be taken away from other issues such as servicing customers with sewer and water main problems in NYC and attending to actual business issues.
- DEP inspection report - A signed inspection report indicating ‘inspection completed’ was produced for the site indicating the installation was completed almost two weeks before the alleged violations occurred.
- GPS report - Balkan produced a GPS print out showing that an asphalt paving crew was last on site 10 days before the violations were written and paved the hole.
- Asphalt plant receipt - A plant receipt was produced showing that asphalt was purchased to pave the roadway 10 days before the violations were issued.
- NYC DOT permit records - Lastly copies of NYC DOT permits for that block in Manhattan were produced showing that the only company working on Ludlow Street that day was Con Edison.
The final decision of the Court
After being adjourned and having to pay a lawyer the cases were finally heard in ECB Court. Fortunately after being presented with what seemed like overwhelming evidence the Administrative Law Judge found in Balkans favor and dismissed the violations and their total monetary value of $3,300.00. Being ‘victorious’ gets tempered by having to spend hours gathering evidence for bogus tickets, having to pay a lawyers bill, and the stress caused by being unjustly accused.
Lastly the courthouse victory is bittersweet because there are absolutely no repercussions to law enforcement and agency officials who write completely unfounded and poorly investigated violations such as these. Businesses and residents alike feel completely disassociated with their own government and those under their governments employ.
What is prima facie?
courtesy of wikipedia
Prima facie; from Latin: prīmā faciē) is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be “at first face” or “at first appearance”, from the feminine form of primus (“first”) and facies (“face”), both in the ablative case. It is used in modern legal English to signify that on first examination, a matter appears to be self-evident from the facts. In common law jurisdictions, prima facie denotes evidence that – unless rebutted – would be sufficient to prove a particular proposition or fact. The term is used similarly in academic philosophy.
Most legal proceedings require a prima facie case to exist, following which proceedings may then commence to test it, and create a ruling.
Burden of proof
In most legal proceedings, one party has a burden of proof, which requires it to present prima facie evidence for all of the essential facts in its case. If they cannot, its claim may be dismissed without any need for a response by other parties. A prima facie case might not stand or fall on its own; if an opposing party introduces other evidence or asserts an affirmative defense it can only be reconciled with a full trial. Sometimes the introduction of prima facie evidence is informally called making a case or building a case.
For example, in a trial under criminal law the prosecution has the burden of presenting prima facie evidence of each element of the crime charged against the defendant. In a murder case, this would include evidence that the victim was in fact dead, that the defendant’s act caused the death, and evidence that the defendant acted with malice aforethought. If no party introduces new evidence the case stands or falls just by the prima facie evidence or lack thereof.
Prima facie evidence need not be conclusive or irrefutable: At this stage, evidence rebutting the case is not considered, only whether any party’s case has enough merit to take it to a full trial.
In some jurisdictions such as the United Kingdom, the prosecution in a criminal trial must disclose all evidence to the defense. This includes the prima facie evidence.
An aim of the doctrine of prima facie is to prevent litigants from bringing spurious charges which simply waste all other parties’ time.
Joseph L. Balkan, Inc. | Sewer and Water Main Specialists
130-01 Jamaica Avenue Richmond Hill, NY 11418
Phone: (718) 849-0900 | Espanol (718) 943-5720 | Fax: (718) 849-9570