Dep't of Buildings v. Mascarella OATH Index No. 2757/10 (Dec. 22, 2010), modified on penalty, Comm r Dec (Jan. 5, 2011), appended

Transcription

1 Dep't of Buildings v. Mascarella OATH Index No. 2757/10 (Dec. 22, 2010), modified on penalty, Comm r Dec (Jan. 5, 2011), appended Respondent, a licensed hoist machine operator, pled guilty to conspiracy to commit extortion. Evidence established that respondent s criminal activity demonstrated poor moral character directly related to his business or trade. One-year suspension of license recommended. Commissioner found that the conduct was sufficiently serious to warrant revocation of respondent s license. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - JAMES MASCARELLA Respondent REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge Petitioner, the Department of Buildings, brought this action alleging that respondent, hoist machine operator James Mascarella (License No. 5950), demonstrated poor moral character by committing misconduct related to the business or trade in which he is licensed. NYC Admin. Code At a hearing on November 8, 2010, the Department relied upon documentary evidence and the testimony of Aisha Norfleet. Mr. Mascarella testified in his own behalf, offered documentary evidence, and presented testimony from Jerry O Connor and Thomas Koehler. For the reasons below, I find that the Department established that Mr. Mascarella violated section of the Administrative Code and recommend a one-year suspension of his Class B hoist machine operator s license.

2 -2- ANALYSIS The facts are undisputed. Mr. Mascarella, a third-generation operating engineer, has been a hoist machine operator for 28 years (Tr. 30). In 1996, the Department issued Mr. Mascarella a Class B hoist machine operator s license, also referred to as an unlimited license (Tr. 15; Pet. Ex. 4). He has an unblemished safety record and the Department has renewed his license thirteen times (Pet. Ex. 3; Tr. 59). In 2008, the Department began to ask applicants whether they had ever been convicted of any crime (Tr. 18; Pet. Ex. 4). On his July 2008 renewal application, Mr. Mascarella disclosed that, four years earlier, he pled guilty in federal court to one count of conspiracy to commit extortion, in violation of 18 U.S.C.S. 1951, 3147(1) (Pet. Exs. 1, 2, 4). Following the disclosure, the Department renewed Mr. Mascarella s license on July 31, 2008, for another three years (Pet. Ex. 4). Yet, on May 5, 2010, the Department petitioned to revoke Mr. Mascarella s license because of his criminal conviction (ALJ Ex. 1). At the hearing, the Department relied upon the transcript of Mr. Mascarella s September 2004 guilty plea, the January 2005 judgment of conviction, and testimony concerning the responsibilities of hoist machine operators. Mr. Mascarella testified and offered evidence of his rehabilitation. He also presented testimony from two witnesses who described his good character and expertise as a crane operator. The Department proved that Mr. Mascarella committed misconduct related to his licensed trade and demonstrated poor moral character, but the evidence failed to show that revocation is the appropriate penalty. The Administrative Code requires that all applicants for licenses in the building trades must be of good moral character. Admin. Code Upon a finding of poor moral character that adversely reflects upon a licensee s fitness to conduct regulated work, the Code authorizes the Commissioner to revoke or suspend a license, or impose a fine of up to $25,000. Admin. Code (13). In the construction industry, extortion demonstrates poor moral character and adversely reflects on a licensee s fitness to conduct regulated activity. See Dep t of Buildings v. Duffy, OATH Index No. 2758/10 at 3 (Dec. 16, 2010) (conspiracy to commit extortion to obtain preferential treatment, directly reflects hoist machine operator s poor moral character); see also Dep t of Buildings v. Persico, OATH Index No. 994/10 (Apr. 9, 2010), adopted, Comm r Dec. (Apr. 23, 2010) (federal racketeering conviction demonstrated hoist machine operator s poor moral character).

3 -3- Mr. Mascarella pled guilty to conspiracy to commit extortion to obtain preferential treatment in the assignment of construction work. The count of the indictment to which Mr. Mascarella pled guilty alleged that, in late 2001, he participated in a conspiracy to obtain preferential and/or no show jobs to individuals selected by an associate of the Genovese crime family (Pet. Ex. 2, at 4-5). In his plea allocution, Mr. Mascarella admitted that he understood that local union officials were told that they would suffer economic harm if he did not receive preferential treatment in the assignment of a master mechanic s position (Pet. Ex. 2, at 12-13). The Court later sentenced Mr. Mascarella to five months imprisonment, two years supervised release, and a $3,000 fine (Pet. Ex. 1). Under principles of collateral estoppel, Mr. Mascarella s guilty plea and conviction proved that he committed the crime charged. See S.T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 305 (1973); Dep t of Buildings v. Benlevi, OATH Index No. 395/09 at 2 (Jan. 9, 2009), adopted, Comm r Dec. (Jan. 22, 2009). Ms. Norfleet, the Department s director of licensing, testified that all licensees are required to have good moral character (Tr ). Among other things, licensees are required to be trustworthy and honest in reporting accidents and in their dealings with the Department (Tr. 16). Because inspectors cannot be at every job site all the time, the Department depends upon the integrity of its licensees (Tr ). Petitioner proved that honesty and integrity are basic requirements for hoist machine operators. Thus, Mr. Mascarella s crime, conspiracy to commit extortion to obtain a preferential work assignment, directly related to his licensed activity. FINDING AND CONCLUSION Mr. Mascarella s conspiracy conviction proved that he committed misconduct related to the trade for which he is licensed, and demonstrated poor moral character, in violation of section , of the Administrative Code. RECOMMENDATION The Department seeks revocation of Mr. Mascarella s license. That is the same position the Department has taken in eight recent cases involving hoist machine operators convicted of federal racketeering charges. See, e.g., Duffy, OATH 2758/10 at 5; see also Dep t of Buildings v. Panessa, OATH Index No. 2759/10 at 3-4 (Dec. 17, 2010), and cases cited therein. However, the Administrative

4 - 4 - Code does not mandate license revocation for a criminal conviction, even for a crime that demonstrates poor moral character and directly relates to a trade or profession. The Code requires a case-by-case determination and provides for a menu of sanctions, ranging from a fine or suspension to revocation. Admin. Code Furthermore, section 752 of the Correction Law provides that no license shall be denied or acted upon adversely by reason of a prior criminal conviction or a finding of lack of good moral character, unless there is a direct relationship between the criminal offense and the license or continuation of the license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. Corr. Law 752. In making a decision in accordance with section 752 of the Correction Law, the following factors must be considered: (a) (b) (c) (d) (e) (f) (g) (h) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. The specific duties and responsibilities necessarily related to the license or employment sought or held by the person. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities. The time which has elapsed since the occurrence of the criminal offense or offenses. The age of the person at the time of occurrence of the criminal offense or offenses. The seriousness of the offense or offenses. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public. Corr. Law 753; see also Soto v. NYS Office of Mental Retardation and Developmental Disabilities, 26 Misc. 3d 1215A at 6 (Sup. Ct. Kings Co. 2010) (agency s denial of license based upon prior criminal conviction, and failure to consider section 753 of the Correction Law, deemed an abuse of discretion). Here, application of the factors set forth in the Correction Law supports a penalty other than revocation. The State s Public Policy

5 - 5 - New York has long had a strong public policy in favor of employing ex-offenders. Islam v. NYC Taxi and Limousine Comm n, 2008 N.Y. Misc. LEXIS 7491, at 4 (Sup. Ct. N.Y. Co. 2008). This policy is rooted in basic human fairness and the premise that employment is one of the best ways to reduce recidivism. Id. (citation omitted); see also D. Archer and K. Williams, New York State Judicial Institute, 2005 Partners in Justice: A Colloquium on Developing Collaborations Among Courts, Law School Clinical Programs and the Practicing Bar: Making America The Land of Second Chances: Restoring Socioeconomic Rights for Ex-Offenders, 30 N.Y.U. Rev. L. & Soc. Change 527, 529 (2006) ( To prevent recidivism and afford ex-offenders a second chance, the government must facilitate an exoffender s successful transition back into the community). The Specific Duties of a Hoist Machine Operator Mr. Mascarella s Class B license authorizes him to operate the largest cranes in New York. Without question, safe operation of cranes is necessary to protect life, limbs, and property (Norfleet: Tr ; O Connor: Tr. 34). The Department also stressed that it relied on the integrity of crane operators because inspectors cannot be everywhere at the same time (Tr ). See Persico, OATH 994/10 at 5. The 2005 criminal conviction does not automatically render Mr. Mascarella incapable of safely operating a crane. In fact, he has an extraordinary safety record. As previously noted, he has been an operating engineer for more than 25 years without an accident (Tr. 59). He has extensive experience training other crane operators and he obtained certification from a national crane organization more than ten years before the Department required it (Tr ). Time That Has Elapsed Since The Offense Mr. Mascarella s crime occurred nine years ago. Neither the passage of time nor the Department s repeated renewal of his license excuses Mr. Mascarella s conduct. See Duffy, OATH 2758/10 at 8 n.1 (Dec. 16, 2010) (because of the need to protect the public and to assure that licensees are honest, the Department may seek revocation based on pre-licensing criminal conduct); Dep t of Buildings v. (Michael) Gelb, OATH Index No. 2155/96, at 28 (Mar. 3, 1997), aff d, Sup. Ct. N.Y. Co. Index No /97, Dec. and Order (Dec. 11, 1998) (Daniels, J.) (license revoked despite ten-year gap between crime and revocation proceeding). However, the remoteness of Mr. Mascarella s crime is a mitigating factor. As the years pass, the significance of a criminal conviction diminishes and other indicia of integrity and rehabilitation become more important. Gelb, OATH 2155/96 at 17.

6 - 6 - The issue presented here is whether Mr. Mascarella presently has the requisite moral character to hold a Class B hoist machine operator s license. His conduct nine years ago reveals something about his character, but it does not tell the entire story. Following his arrest, Mr. Mascarella pled guilty and accepted responsibility for his crime. He served his sentence, paid his fine, and resumed his career without incident. Age At The Time Of Offense Mr. Mascarella was 37 years old at the time of the offense. As a mature adult who had worked his entire life as an operating engineer, he knew that it was wrong to obtain a preferential assignment through unlawful means. On the other hand, Mr. Mascarella has no prior, or subsequent, criminal convictions or arrests. This suggests that his 2001 crime was an aberration. Seriousness of the Offense Conspiracy to commit extortion is a serious crime. The charge to which Mr. Mascarella pled guilty also alleged the involvement of an organized crime family in union activities. Corruption of a trade union, including no-show jobs and preferential treatment, deprives honest workers of their livelihoods, drives up costs, and endangers lives. Thus, the Department has a substantial interest in rooting out and preventing the influence of organized crime. Persico, OATH 994/10 at 5. Despite the seriousness of the charge, Mr. Mascarella received a relatively lenient sentence. He faced up to 20 years in prison and a fine of $250,000 or twice the monetary gain derived from his offense (Pet. Ex. 2, at 5). Instead, he received a five-month prison term, a $3,000 fine, and supervised release (Pet. Ex. 1). No restitution was required (Pet. Ex. 1). It appears that Mr. Mascarella played a relatively minor role in the conspiracy. Compare Duffy, OATH 2758/10 at 9 (five-month prison term deemed a mitigating factor), with Persico OATH 994/10 at 6 (21-month prison term and imposition of more than $700,000 in restitution reflects gravity of mail fraud conviction). Information Regarding The Offender s Rehabilitation Mr. Mascarella presented a wealth of evidence attesting to his good character and rehabilitation. He is active in his local church, where he serves as a Eucharistic Minister. Since 1993, he has been a volunteer firefighter. And on September 11, 2001, he was operating a crane on Greenwich Street, near the World Trade Center. Following the terrorist attack, he immediately dismantled his crane from his construction site and moved it to Ground Zero, where he was among the first construction workers to assist in the recovery effort (Tr. 61; Resp. Ex. E).

7 - 7 - At the hearing, Mr. Mascarella provided more than 15 letters from friends, family, and coworkers attesting to his good character (Resp. Exs. E, I). Most telling, was a letter from his federal probation officer, who wrote: During the time that I supervised Mascarella, it was obvious that he was remorseful for his involvement in the offense and there was no indication that he would ever again be involved in any criminal activity. Had early termination from supervision been an available option, Mascarella would have been an ideal candidate (Resp. Ex. A). Mr. O Connor, an operating engineer who worked for many high-rise concrete companies, described Mr. Mascarella s extraordinary ability: [W]hen you re in the concrete industry, where you re pouring concrete and each concrete bucket is, say, 15,000 pounds and the contractor s got to get in 30 trucks within a six-hour period, only a handful of men can do that, really in a safe manner, in a productive manner for the company. And Jimmy was by far the most skilled (Tr ). Furthermore, Mr. Koehler, a crane company owner, testified that he hired Mr. Mascarella despite his criminal conviction (Tr. 42). According to Mr. Koehler, he trusted Mr. Mascarella to make financial decisions, supervise the day-to-day business, and safely operate multi-million dollar cranes (Tr ). In Mr. Koehler s view, Mr. Mascarella s 2005 conviction did not affect his present ability to operate cranes safely (Tr. 46). Of course, that opinion is not binding on the Department, but it is reliable evidence of Mr. Mascarella s present character and ability. Although Mr. Mascarella has not yet received a relief from civil disabilities, that should not be held against him. He submitted a request for such relief more than a year and a half ago (Resp. Ex. H). In April 2009, he received a request for his last three annual tax returns, which he immediately furnished (Tr ; Resp. Exs. G, H). Unlike the straightforward process available for state convictions, where the application for relief from civil disabilities goes directly to the sentencing judge, the process for federal convictions is more cumbersome. Applications are made to the State Division of Parole. Compare Corr. Law 702 with Corr. Law 703. The Department s Legitimate Interest in Public Safety The Department has a strong interest in assuring safe workplaces as well as protecting lives and property. Mr. Mascarella is an extraordinarily skilled crane operator with an impeccable safety record. Although the Department has a vital interest in preventing corruption and Mr. Mascarella s conspiracy

8 - 8 - conviction raises legitimate concerns about his integrity, he has presented substantial mitigating evidence. He accepted responsibility and received a relatively lenient prison sentence. Moreover, he has served his sentence, demonstrated genuine remorse, and presented evidence of his reputation for trustworthiness. The Administrative Code and the Correction Law require an individualized assessment of the impact of a criminal conviction on a licensee s fitness. Based upon the entirety of the evidence presented, a penalty less than revocation would strike the proper balance between the Department s mission and the state s policy of encouraging rehabilitation. A lesser penalty would properly reflect Mr. Mascarella s current moral fitness to hold a license. Accordingly, I recommend a one year suspension of respondent s license. December 22, 2010 Kevin F. Casey Administrative Law Judge SUBMITTED TO: ROBERT D. LiMANDRI Commissioner APPEARANCES: CAMIE DART, ESQ. Attorney for Petitioner LaREDDOLA LESTER, LLP Attorneys for Respondent

9 - 9 - BY: ROBERT L. LaREDOLLA, ESQ. Commissioner s Decision (Jan. 5, 2011) I have completed my review of Office of Administrative Trials and Hearings Judge Kevin F. Casey's Report and Recommendation in this matter (OATH Index No. 2757/10, Dec. 22, 2010), along with the record and transcript of the proceedings. During the OATH hearing on November 8, 2010, the Department submitted unrebutted evidence of respondent s conviction of conspiracy to commit extortion through certified copies of the

10 judgment and the plea allocution from his criminal case. (Report and Recommendation at 1-3); (Tr. at 5, 9-10). The Department s witness Aisha Norflett, Director of the Department s Licensing Unit, also testified that good moral character is a license requirement, and that because the Department's inspectors cannot be at every job site all the time, the Department depends upon the integrity of its licensees. (Report and Recommendation at 3); (Tr. at ). While I agree with the finding of OATH Judge Casey in his Report and Recommendation that respondent s conviction of conspiracy to commit extortion constitutes criminal activity directly related to his business or trade and demonstrates poor moral character, I have determined that respondent s conduct was sufficiently serious to warrant revocation of his license as a Hoist Machine Operator, rather than suspension as recommended by Judge Casey. Respondent s crime involved a serious act of fraud and dishonesty - participating in a conspiracy to commit extortion to obtain preferential treatment in the assignment of construction work. (Report and Recommendation at 2-3). The Department relies on the integrity and honesty of all licensees to assure public safety and it depends upon licensees to conduct their work in a code compliant and safe manner. (Report and Recommendation at 3); (Tr. at 16-17); Dep t of Buildings v. (Pasquale) Inglese, OATH Index No. 2575/10 (Dec. 1, 2010); Dep t of Buildings v. Carrara, OATH Index No. 2613/10 (Dec. 14, 2010); Dep t of Buildings v. Persico, OATH Index No. 994/10 (Apr. 9, 2010); Dep t of Buildings v. Casa, OATH Index No. 975/97 (May 14, 1997). Revocation is the appropriate penalty in respondent s case should the factors cited in New York Correction Law sections 752 and 753 be considered. Respondent s acts of participating in a conspiracy to commit extortion on a construction job site are sufficient to establish poor moral character that adversely reflects on his fitness to hold a licensed position in the construction industry. (Report and Recommendation at 1, 3). Respondent s age at the time of the conviction (39), the seriousness of the crime and its direct relationship to and involvement in the construction industry all support my determination that revocation is the appropriate penalty.

11 It is notable that Judge Casey finds your conviction a serious crime and specifically states that [t]he charge to which Mr. Mascarella pled guilty also alleged the involvement of an organized crime family in union activities. Corruption of a trade union, including no show jobs and preferential treatment, deprives honest workers of their livelihoods, drives up costs, and endangers lives. Thus, the Department has a substantial interest in rooting out and preventing the influence of organized crime. Persico, OATH 994/10 at 5. (Report and Recommendation at 6). However, Judge Casey suggests that respondent s sentence of five months imprisonment, $3,000 fine and 2 years of supervised release was a relatively lenient sentence and that he played a relatively minor role in the conspiracy. (Report and Recommendation at 6). I disagree, and OATH has as well. See, Dep t of Buildings v. Casa, OATH Index No. 975/97 (May 14, 1997) (OATH judge recommends revocation of three licenses where Respondent had an attempted bribery conviction for which the Respondent was only sentenced to a three-year conditional discharge. Casa, at 4); Dep t of Buildings v. Borrazo, OATH Index No. 128/06 (Oct. 28, 2005) (OATH judge recommends revocation of license where Respondent had a bribery conviction for which the Respondent was sentenced to two years probation and a $2,500 fine. Borrazo, at 2). Judge Casey also states that a penalty less than revocation would strike the proper balance between the Department s mission and the state s policy of encouraging rehabilitation. (Report and Recommendation at 8). I disagree again. Revocation of respondent s license does not bar him from all employment at construction sites, just employment using his license. Respondent is free to work in other non-licensed capacities at construction sites. Additionally, OATH has consistently determined that revocation was the appropriate penalty for convictions such as conspiracy to commit extortion. Dep't of Buildings v. (Pasquale) Inglese, OATH lndex No. 2575/10 at 6-7 (Dec. 1, 2010); Dep t of Buildings v. Carrara, OATH Index No. 2613/10 at 5 (Dec. 14, 2010); Dep t of Buildings v. Persico, OATH Index No. 994/10 at 3-4 (Apr. 9, 2010). Despite the time that has passed between respondent s conviction of conspiracy to commit extortion and the license revocation proceeding, respondent s conviction involves a crime of corruption and dishonesty and is indicative of poor moral character (Report and Recommendation at 1, 3, 6).

12 The Department renewing respondent s license in the past does not estop or otherwise preclude the Department from instituting this disciplinary proceeding and revoking his license at this time. The Department has the right to be assured of the integrity, honesty and trustworthiness of its licensee and should not have to bear the risk of future similar misconduct. Dep t of Buildings v. Gabbidon, OATH Index No. 1073/03 (Aug. 4, 2003); Dep t of Buildings v. (Pasquale) Inglese, OATH Index No. 2575/10 (Dec. 1, 2010); Dep t of Buildings v. Carrara, OATH Index No. 2613/10 (Dec. 14, 2010). Respondent pleaded guilty to a serious crime involving corruption in the construction industry and revocation is the appropriate penalty for a conviction of conspiracy to commit extortion. Based upon the foregoing, I accept Judge Casey s findings and determination that respondent s conviction demonstrates poor moral character and is directly related to the trade for which he is licensed, and reject Judge Casey s Recommendation to suspend respondent s Hoist Machine Operator s license for one-year. Effective immediately, respondent s license is hereby revoked. He must surrender his license immediately to the Department. SO ORDERED: Robert LiMandri, Commissioner cc: ALJ Kevin F. Casey Robert La Reddola, Esq