Alarmingly Useless: 
The Case for Banning Car Alarms in New York City

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Appendix B

Legal Authority of New York City
to Ban Audible Car Alarms

Mateo Taussig-Rubbo^*
March 13, 2003

[ INTRODUCTION | STATE AND CITY LAW ON AUDIBLE CAR ALARMS | DISCUSSION | CITY POWER TO REGULATE NOISE | REASONABLENESS STANDARD FOR EXERCISE OF POLICE POWER | REASONABLENESS IN EXERCISE OF POWER OVER TRAFFIC | STATE HAS NOT PREEMPTED LOCAL REGULATION | BAN ON OPERATION, SALE, AND INSTALLATION NOT INCONSISTENT WITH STATE LAW | INCONSISTENT LOCAL LAW MAY BE PERMISSIBLE WHERE SPECIAL LOCAL CONDITIONS ]

INTRODUCTION

High ambient noise levels are a steady source of concern to New Yorkers, impacting quality of life in myriad ways. Transportation Alternatives, a non-profit public interest advocacy group, has requested an analysis of the scope of the City of New York's authority to ban or otherwise regulate the source of much noise in the City-the audible motor vehicle alarm.

This memorandum, based upon analysis of relevant constitutional and statutory authority, as well as case law, concludes that the City of New York (the "City") has authority to ban the sale, use or installation of audible motor vehicle alarms (hereafter "alarms" or "car alarms"). Such a ban would be a valid exercise of the City's police powers, and New York State (the "State") law expressly contemplates local enforcement with respect to alarms. A ban would not be preempted by or be inconsistent with State law. Were preemption or inconsistency to be found, a local ban may nonetheless be permissible where there are unique local conditions warranting such a variance.

Aside from an outright ban, the City has substantial power to regulate noise, traffic, and parking. The history of ineffective and underenforced regulation surrounding this issue suggests that care will have to be taken to design a workable enforcement mechanism.

STATE AND CITY LAW ON AUDIBLE CAR ALARMS⁴⁷

State law touches upon audible car alarms in a number of ways. Through the Business Law, the State has prohibited the sale and installation of car alarms where the audible portion of alarm shut does not shut off after three minutes; it further requires that alarms be capable of being activated only by "direct physical contact" or by an "individual remote activation device." N.Y. Gen. Bus. § 399 (u)(1)(2).⁴⁸ The State has exempted installers of car alarms from the general licensing requirement of Article 6-D of the General Business Law. N.Y. Gen. Bus. Law § 69-m(2).

State law also touches upon car alarms through its regulation of the insurance industry, requiring insurers to keep records of the fire, theft, and comprehensive insurance experience of customers with and without anti-theft devices. The law does not specifically permit or require alarms, but provides that where they are used insurers shall "appropriately modify the premium…for automobiles with such devices, to reflect reduced exposure to risk." N.Y. Insur. Law § 2337 (b). The section further provides that the premium reduction shall be "based solely on sound actuarial practices and limited only by sound actuarial determinations," and thus is not an automatic discount. N.Y. Insur. Law § 2337 (b).

The State Vehicle and Traffic Law specifically permits the legislative body of local governments to serve a notice of a violation "of any local law or ordinance relating to the prevention of noise pollution" caused by an alarm owner over whom the City has jurisdiction. N.Y. Veh. & Traf. Law §1640(a)(21). State law has prohibited a gong or siren whistle used on other than an emergency vehicle, but states that this prohibition does not apply to those designed solely as a burglar alarm on a vehicle. N.Y. Veh & Traf. Law § 375(1). Thus State law expressly contemplates local regulation of car alarms.

The City has also exercised jurisdiction over car alarm noise in the context of its efforts to reduce ambient noise levels through a comprehensive Noise Control Code (the "Noise Code"). New York, N.Y. Admin. Code, ch 2. § 24-201 to § 24- 269 (2003). Section 24-221 of the Noise Code mirrors the State's requirements but applies to operation. It provides that all alarms in operation must shut off after three minutes and shall only be activated by direct physical contact or through a remote activation device. Police officers are empowered to disconnect an active alarm, and tow the vehicle if they are unable to do so and unable to contact the owner. The burden is placed on the vehicle operator to assist in this regard by displaying the telephone number of their local police precinct, which in turn shall have been provided with the owner's contact information. New York, N.Y. Admin. Code, ch 2. § 24-221(d), (f), (g), (h).

DISCUSSION

Despite these provisions, everyday experience in the City suggests that the problem of car alarms unnecessarily disturbing the public peace has not been solved. State and local regulation often touch upon the same area where, as here, the State has not evinced a desire to exclude local regulation or developed a comprehensive scheme for dealing with an issue. There is most likely no legal impediment to the City developing further restrictions, including a ban, to address the issue.

CITY POWER TO REGULATE NOISE

The constitutional home rule provision grants broad police powers to local governments relating to the welfare of their citizens, including the "safety, health, and well-being of persons or property" and the management of highways, roads and streets. N.Y. Const. Art. IX, § 2(c)(6)(10).⁴⁹ See also, for e.g., Municipal Home Rule Law, Art. 2. §10(1)(ii)(a)(12). This includes the power to adopt a noise control ordinance. People v. New York Trap Rock, 456 N.Y.S.2d 711, 714 (1982) (finding town noise ordinance authorized under both Municipal Home Rule Law and Town Law). The State contemplates local government enforcement of local noise laws in the context of car alarms, although it does not expressly authorize a ban. N.Y. Veh. & Traf. Law § 1640(a)(21).

REASONABLENESS STANDARD FOR EXERCISE OF POLICE POWER

A ban would likely be authorized as arising from the City's police powers.

In general, local laws passed pursuant to police power affecting private property must have a "substantial relation to matters within the field where legislative power is vested" and "must be reasonably calculated to achieve a legitimate public purpose." Good Humor Corp. v. City of New York, 49 N.E.2d153, 155 (1943). "The restraint and control exercised over the citizen must be reasonable in light of the public necessity involved" and to invalidate police power legislation, "it must be shown, a matter of law, that the legislation not justifiable under any permissible interpretation of the facts, as a reasonable exercise…" 20 N.Y. Jur. Const. Law. § 221 (citing 20 N.Y. Jur. Const. Law. § 220; Rudack v. Valentine, 122 n.Y.S.2d 78 (1937), aff'd 125 .Y.S.3d 112). A ban on the sale, installation and operation of alarms pursuant to the City's police powers would meet these conditions. The City has power over noise regulation, and a ban on car alarms has a substantial relation to this power.

A ban may, however, be subject to a higher burden. In the context of an absolute ban on "activities" courts will often expect a showing "that the abuses associated with the acts prohibited are general and difficult to control by regulation and that they cause or threaten injury to the public which is so serious that the municipality might reasonably believe it outweighs the harm that would be caused to some by complete prohibition." People v. Federico, 409 N.Y.S.2d 177 (App. Term 1978); 20 N.Y. Jur. Const. Law. § 239.

It is unlikely that this higher standard would apply. The ban considered here leaves untouched the use of non-audible alarms and other safety equipment. In this respect it is not an all-encompassing ban on a class of equipment. Nor is it obviously a ban on an "activity" (such as using a power blower or landing a boat, as discussed in the case law) but is narrowly focused. See, People v. Edinger, 683 N.Y.S.2d 820 (N.Y. City Ct., 1998); Federico, 409 N.Y.S.2d 177. However, if the factors articulated in Federico were applied, a ban on alarms would nonetheless likely be sustained given the serious impact of alarm noise, the futility of prior regulation, and the negligible benefits alarms provide their owners and the existence of alternative equipment.

REASONABLENESS IN EXERCISE OF POWER OVER TRAFFIC

Alternatively, a ban on car alarms could be construed as a regulation pursuant to the State Vehicle and Traffic Law as it would touch upon cars coming to the City from throughout the State. Section 1640 grants the legislative body of any city or village the power to make specific laws relating to their streets. The City may, for example, prohibit the parking or standing of vehicles. N.Y.Veh. & Traf. Law § 1640(a)(2). Additionally, the City may adopt "such additional reasonable local laws, ordinances, orders, rules and regulations with respect to traffic as local conditions require subject to the limitations contained in the various laws of this state." N.Y.Veh. & Traf. Law § 1640(a)(16).

Reasonableness under this provision is evaluated by (1) comparing the proposed action with the specific local actions allowed in the statute, (2) evaluating whether "adequate and useful" alternatives exist for motorists in light of the proposed action, (3) considering whether the proposed classification of vehicles is discriminatory and (4) analyzing whether the action has some "relation to the public safety, convenience or necessity." People v. Grant, 306 N.Y. 258 (1954).

These factors of "reasonableness" are useful to bear in mind as they derive from efforts to regulate vehicles both from within a city and those traveling through it and thus might be used to challenge a ban. A ban on audible car alarms would likely be found reasonable in light of these considerations, although regulation pursuant to the police power would be more intuitive.

STATE HAS NOT PREEMPTED LOCAL REGULATION

The preemption doctrine "represents a fundamental limitation on home rule powers" as it preserves the "untrammeled primacy of the Legislature to act…with respect to matters of State concern." Albany Area Builder's Ass'n v. Town of Guilderland, 547 N.Y.S.2d 627, 629 (1989) (internal quotations and citations omitted). Preemption arises both where there is "express conflict" and where the State has evidenced a desire to "occupy the field." Id., at 629.

The State may have occupied the field, and thus preempted all local legislation whether inconsistent or not, based on express claims to preemption, a need for uniformity, or from the "nature of the subject matter being regulated and the purpose and scope of the State legislative scheme." Id., at 629. A "comprehensive detailed statutory scheme" may indicate implied preemption. Id., at 629.

The State Business Law concerning car alarms does not expressly preempt local regulation and nor has the State evidenced a desire to occupy the field through comprehensive regulation or a detailed scheme. Nor does the State Insurance Law expressly preempt local regulation. N.Y. Insur. Law § 2337. The car alarm provision does not permit car alarms but rather provides that when they are used, that insurers shall take the effect they have into account in setting premiums. Nor has the State implicitly preempted all local regulation of insurance. See, for e.g., United Car & Limousine Foundation, Inc. v. New York City Taxi and Limousine Com'n, 680 N.Y.S.2d 815 (Sup. 1998) (minimum state liability insurance coverage did not preempt higher City minimum to address local traffic conditions).

The State has expressly requested uniformity in the context of traffic regulation (although allowing the City to supercede State law in certain respects). N.Y. Veh & Traf. Law § 1640, 1642. And the State, acting on its own, could ban car alarms. Most importantly, however, the State has expressly permitted local regulation and enforcement of noise ordinances that address car alarms "over which the city or village has jurisdiction upon the owner of the motor vehicle" and provides that such notice shall be affixed to the window in a conspicuous place. N.Y. Veh & Traf. Law § 1640 (a)(21).

Even where there is preemption with respect to one regulatory area, it need not preclude every area that it incidentally touches upon. See, People v. New York Trap Rock Corp. 456 N.Y.S.2d 711, 714 (1982) ("that an ordinance has some connection with a subject upon which a State statute exists does not automatically vitiate on that account"); JIJ Realty Corp. v. Costello, 658 N.Y.S.2d 92 (1997) (State's preemptive scheme covering installation, maintenance and abandonment of oil storage tanks did not bar local zoning law concerning use of such tanks).

Where there is some potential overlap or conflict, this is of "little moment" as the home rule provisions are "designed to make local government more responsive to the needs of particular localities" and that "wherever practicable" the Municipal Home Rule Law "encourages reconciliation of State and local rules." New York Trap Rock, 456 N.Y.S. at 714 (citing Municipal Home Rule Law, § 51).

BAN ON OPERATION, SALE, AND INSTALLATION NOT INCONSISTENT WITH STATE LAW

Where the State has not preempted local regulation, local law must nonetheless not be inconsistent with State law. A ban on the operation of car alarms would not be inconsistent, although it would prohibit the operation of alarms that the State does not prohibit.

Local laws can make unlawful what is not prohibited by State law. The expansive rule, sometimes stated, that inconsistency lies where "local law prohibits what State law would allow" is "meritless…This statement of the law is much too broad. If this were the rule, the power of local governments to regulate would be illusory." Jancyn Mfg. Corp. v. Suffolk County, 524 N.Y.S.2d 8, 12 (1987) (internal citations and quotations omitted).

The expansive understanding of inconsistency applies only where there is preemption or when the State "specifically permits the conduct prohibited at the local level." Id., at 12. See, e.g., In Vatore v. Commissioner of Consumer Affairs of City of New York, 612 N.Y.S.2d 357 (1994) (local law restricted cigarette vending machines, making unlawful what was lawful under State law, nonetheless not inconsistent with State law); In People v. Judiz, 38 N.Y.2d 529, 531 (State prohibition of possession with intent of imitation guns does "not mean that local efforts to further control use [or sale] through direct prohibition upon possession [of toy guns] itself is precluded").

Thus the mere fact that the City may ban what is not unlawful for the State is not an infirmity unless the state specifically permits it or there is preemption. The state has not specifically permitted the operation of alarms and has not preempted the city in this area of regulation.

State law does contemplate that car alarms may be installed and sold, and seeks to restrict these devices in the manner described above. This contemplation does not take the form of a specific permission, but rather a restriction that is silent as to whether the product may be sold or installed. N.Y. Gen. Bus. § 399 (u). As there is no specific permission to sell or install the devices, local ability to further restrict the sale or installation is permissible. This view is supported by Veh. & Traf. Law §1640, which permits enforcement of local noise regulations with respect to alarms.

INCONSISTENT LOCAL LAW MAY BE PERMISSIBLE WHERE SPECIAL LOCAL CONDITIONS

If it were determined, however, that there was an inconsistency with State law, or that there was State preemption, a City ban may still be permissible where based on special local conditions. See, e.g., People v. Cook, 34 N.Y.2d at 110 (1974) (noting in dicta that "where inconsistency with a general State law is shown, a local law will be upheld, despite the inconsistency, if there is a special local problem supporting the variance").⁵⁰

In analyzing local inconsistency under this rubric, courts have considered unique features of City life, noting, for example, that window bars designed to prevent children from falling are a response to the "unique problem in the sheer numbers of children at risk …[in] large multi-story dwellings." People v. Nemadi, 531 N.Y.S.2d 693, 700 (1988). Or, in the case of insurance for taxis, finding that City traffic justifies higher insurance levels due to the increased risk of accident. United Car & Limousine Foundation, Inc. v. New York City Taxi and Limousine Com'n, 680 N.Y.S.2d 815 (Sup. 1998); see In Matter of Kress & Co. v. Dept. of Health, 27 N.E.2d 431, 432 (1940) ("[a] municipality which is empowered to adopt health regulations may, in spite of general regulations by the State, adopt additional regulations or requirements where there is a real distinction between the city and other parts of the State. They must be based upon special conditions existing in the city"); People v. Ortiz 479. N.Y.S.2d 613, 621, 619 (1984) (a local law banning possession of knives four inches or longer is not inconsistent with state law prohibiting weaponry with unlawful intent, but rather supplements the State Penal Law with "additional reasonable requirements" that are in "response to a serious and persistent urban problem").

The City, because of its density and high levels of ambient noise, would likely be found to present special conditions that distinguish it from the rest of the State with respect to car alarms.

[An] alarm combines in its person all that is objectionable about a fire, a riot, and a harem, and at the same time has none of the compensating advantages, of one sort or another, that customarily belong with that combination. - Mark Twain⁵¹

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^* J.D.; consultant to Transportation Alternatives.

⁴⁷Federal law does not restrict regulation in this area. The Noise Control Act of 1972 was intended to protect Americans from "noise that jeopardizes their health or welfare." 42 U.S.C. s7641 (1998). However, the federal role has been circumscribed, leaving the field to state police powers. See, Steven N. Brautigam, Rethinking the Regulation of Car Horn and Car Alarm Noise: An Incentive Based Proposal to Help Restore Civility to Cities, 19 Colum. J. Envtl. L. 391, 426 (1994).

⁴⁸"§399-u. Motor vehicle alarms. 1. On and after the effective date of this section, all devices offered for sale or installed in the state as alarms for motor vehicles shall be equipped and shall function so that the audible portion of the alarm resets and ceases to sound not more than three minutes after it is activated and commences sounding. No audible burglar alarm in a motor vehicle shall be capable of being activated except by (a) direct physical contact with that motor vehicle or (b) through the use of an individual remote activation device that is designed to be used with the motor vehicle alarm system of a particular vehicle so long as the alarm activated by such device cases to sound within not more than three minutes. 2. A violation of the provisions of this section shall constitute an offense punishable by a fine of not more than one hundred dollars for the first offense and not more than two hundred fifty dollars for a second or subsequent offense." N.Y. Gen Bus. Law § 399 (u).

⁴⁹The New York Constitution provides that "In addition to powers granted in the statute of local governments or any other law (i) every local government shall have power to adopt and amend laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government" and "(ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such local law relating to other than the property, affairs of such local government" relating to, inter alia, the "protection, order, conduct, safety, health and well-being of persons or property therein ." N.Y. Const. Art. IX, § 2(c).

⁵⁰In People v. Wieback, 577 N.Y.S.2d215 (1985), the Suffolk County Judge noted in dicta that Cook had been negated by Matter of Town of Islip v. Cuomo, 64 N.Y.2d 50 (1984), but this seems not to have been the case. Islip did not address whether special local conditions could justify a variance to state law, as there was no local law at issue. Rather, Islip concerned whether the State could act upon local matters without enacting a special law. The court found that even though the State statute touched only upon two counties, it was nonetheless a general law as it sought to protect the sole source aquifer, was thus of State concern, and thus could be passed as a general, not special law. The "rule is that 'if the subject matter of the statute is of sufficient importance to the State generally to render it a proper subject of State legislation…the State may freely legislate, notwithstanding the fact that the concern of the State may also touch upon local matters." Islip 64 N.Y.2d at 56 (citations omitted).

⁵¹Mark Twain, "The McWilliamses and the Burglar Alarm [1882]", in The Complete Short Stories of Mark Twain, Bantam Books, New York, 1957, pp.198.

The authors wish to thank Brian C. Anderson, Steven Brautigam, and John Tierney for their pioneering articles on car alarms.