By Jen Benepe– April 11, 2013 –New York City
In a startling turnaround, Bike New York has won its lawsuit against the city of New York, and now may ride the TD Five Boro Bike Tour–
without paying the toll.
In rendering her decision, Judge Margaret Chan said that the Police Department erred when it made itself the arbiter in determining whether the structure of Bike New York, and how they funded their activities could be considered a factor in determining whether they should be treated as a non-profit ride.
“There is nothing in 38 KCNY 5 19-02 that speaks to how a public charity is to allocate its money,” concluded Judge Chan, referring to NYC administrative law that governs how and when groups could be assessed a traffic control fee when holding a large event.
That toll was being exacted by the New York Police Department to the tune of $967,534.
The fee would be fine if it were fair, but that wasn’t the perception held by Bike NY’s CEO Kenneth Podziba who decided to sue the city.
“We’re thrilled with Judge Chan’s decision, and ready to turn the conversation back to biking,” said Podziba after the decision was handed down.
“Our focus remains on providing high-quality, free bike education to New Yorkers and working with our partners at NYPD and DOT to make this the best TD Five Boro Bike Tour in history.”
It was just those agencies that the Judge criticized in her findings, however. “The authority more appropriate to addrcss that concern along with the concern of how it allocates its funds is the IRS, not the Police Dcpartment or the Office of Citywide Event Coordination and Management,” concluded Chan.
“As such, respondents’determination is unreasonable and cannot be confirmed,” wrote Chan in her decision delivered this evening.
Yesterday we reported that the group had won the case–but we did so prematurely. That misperception was caused by positive reporting after the hearing on Wednesday, which showed Judge Margaret Chan hostile to the city’s case. But we could have just left our headlines intact, and considered our sources divinely prescient.
At issue was whether the group should be charged the cost of NYPD overtime to provide traffic control as the more than 32,000 cyclists pedaled through the five boros.
New York City law was recently amended to state that all athletic events must be charged, but that charitable events are excused the hefty fees. Even political marches can go free of charge.
To wit, came the bill from the NYPD.
But Bike New York’s TD Five Boro Bike Tour, held once a year, though charging $83 to each participant this year, also is a 501 (c), and uses its funds to provide bike education to New Yorkers.
About one third or more of its annual budget is spent on educating about 11,000 New Yorkers.
Several New York office holders came to the group’s defense, led by a serious effort by Councilwoman Gale Brewer whose district borders the west side of Central Park, said Podziba.
Indeed, even Transportation Committee chair James Vacca who normally sounds off against cyclists, came out publicly against the police department fee.
At the germ of the dispute was how to view Bike NY which did things its own way.
“In its application for a parade permit for the Bike Tour, petitioner indicated that it was a not-for-profit organization,” wrote Chan in her decision.
“Rcspondents’ however, classified the Bike Tour as a non-charitable athletic parade as defined in 38 RCNY tj 19-02 (h), which subjects petitioner to a 100% fee to cover the cost expended by respondent Ncw York Police Department’s efforts to control traffic (see 38 RCNY $ 19-05[c]),” she concluded.
Judge Chan considered other non-profit fundraisers in coming to her decision, including the Susan G. Komen Race for the Cure, the Avon Walk for Breast Cancer, and Bike MS NYC, all of which she noted did not use their events to sustain their organizations in the way that Bike New York does.
She also compared the popular biking event that attracts people from all over the country, to the NYC Marathon which she said is competitive and awards its winners from $130K to $200K, whereas Bike New York considers “every cyclist a winner.”
“The critical concerns for meeting the criteria of a Non-Charitable Athletic Parade are that the event is opened to the public, which the Bike Tour is, and it may charge a fee to cover its administrative expense, which it also does, and that the proceeds of the event go to a charitable organization, which Bike NY is,” wrote Chan.
For a full copy of the decision, click on the following link: bikedecision-1