Taxi & Limousine Comm n v. Khouma OATH Index No. 2550/15 (July 2, 2015), adopted, Dep. Comm r Dec. (July 23, 2015), appended

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1 Taxi & Limousine Comm n v. Khouma OATH Index No. 2550/15 (July 2, 2015), adopted, Dep. Comm r Dec. (July 23, 2015), appended At summary suspension hearing, petitioner established that respondent taxicab driver was arrested for assault in the third degree, reckless endangerment, avoiding payment, and leaving the scene of a personal injury accident. ALJ recommended that respondent s license suspension continue. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner - against - PAPA KHOUMA Respondent REPORT AND RECOMMENDATION ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge This summary suspension proceeding was brought by petitioner, the Taxi and Limousine Commission ( Commission or TLC ), against respondent Papa Khouma, a licensed taxicab driver. After receiving notice of respondent s arrest for assault in the third degree, reckless endangerment, avoiding payment, and leaving the scene of a personal injury accident, petitioner summarily suspended his TLC license. Summary suspensions are governed by the New York City Administrative Code and the Commission s rules. Admin. Code (Lexis 2015); 35 RCNY (Lexis 2014). Petitioner contends that respondent s arrest for these charges justifies continued suspension of his TLC license pending a fitness review of his license (ALJ Ex. 1). Respondent maintains that the charges are false and that he poses no threat to the public. A hearing was conducted on June 26, Respondent appeared without counsel. In keeping with rule 103(A)(8) of Appendix A to title 48 of the Rules of the City of New York, the Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York, respondent was advised of his right to be represented by an attorney. The nature and seriousness of the proceedings as well as the procedural aspects of the hearing were also explained to

2 - 2 - respondent. Respondent indicated that he did not want counsel and that he was ready to proceed (Tr. 4-6). For the reasons below, petitioner s evidence is sufficient to establish that respondent poses a risk to the public safety and that suspension of his TLC license should continue. ANALYSIS On January 19, 2015 at 9:20 p.m., respondent was arrested for: (1) assault in the third degree, in violation of Penal Law section ; (2) reckless endangerment in the second degree, in violation of Penal Law section ; (3) avoiding payment, in violation of Penal Law section ; and (4) leaving the scene of a personal injury accident, in violation of Vehicle and Traffic Law section 600(2)(a) (Pet. Ex. 1). The following day, based on that arrest, petitioner suspended respondent s taxicab driver s license (Pet. Ex. 2). Section (a) of the Administrative Code allows petitioner for good cause shown relating to a direct and substantial threat to the public health or safety to suspend a license prior to a hearing and authorizes revocation or suspension after a hearing. Petitioner s rules permit pre-hearing suspension based upon an arrest or citation if the Chairperson believes that the charges, if true, would demonstrate that continued licensure would constitute a direct and substantial threat to public health or safety. 35 RCNY 68-15(d)(1) (Lexis 2014). Under petitioner s rules, a licensee has an opportunity to challenge that finding at a postsuspension hearing, where the issue is whether the charges underlying the Licensee s arrest, if true, demonstrate that the continuation of the License while awaiting a decision on the criminal charges would pose a direct and substantial threat to public health or safety. 35 RCNY 68-15(d)(3). The limited post-suspension hearing provided by the Commission s rules has been found sufficient to comply with due process. Nnebe v. Daus, 665 F. Supp. 2d 311, 328 (S.D.N.Y. 2009) (an arrest itself, absent proof of the underlying charges, is sufficient to justify continued suspension during the pendency of the criminal charges). Thus, OATH is limited to consider the underlying charge as true, regardless of the credible rebuttal testimony of respondent and his witnesses. Taxi & Limousine Comm n v. Kamal, OATH Index No. 2607/10 at 4 (June 1, 2010). Respondent testified that on January 19, 2015, he brought a passenger to John F. Kennedy airport. The passenger did not speak English and had a lot of luggage. Respondent stated that he was following TLC s rules and brought the passenger inside the terminal and

3 - 3 - helped the passenger find the right airline check-in desk (Tr. 8-9, 24). When respondent went back to his taxi, he discovered that it had been towed. After finding out where the taxi was located, respondent took the AirTran, a bus, and then walked a quarter of a mile to the pound. It was a cold night in January and respondent had left his jacket in the taxi (Tr ). Respondent testified that when he got to the pound, he asked a pound employee if he could retrieve his jacket and some personal possessions from the taxi. He had to wait for someone to take him to his taxi. When he got to the taxi he got inside because it was very cold. The employee who brought him to the taxi tried to open the taxi door. Respondent lowered the window to talk to the employee who started punching him in the head. Respondent closed the window, started his taxi, and drove away because the employee was trying to break his window. The employee got into a tow truck and rammed the front of respondent s taxi with the truck causing significant damage. Respondent drove to the office but the employee followed and hit him from behind. Fearing for his safety, respondent drove out of the tow lot and tried to call the police but the employee hit him again full speed on the side of his taxi. Respondent contended that he and the employee got out of their vehicles and that the employee started punching respondent while Port Authority police arrived on the scene. After the police officers spoke to him and the employee, respondent was arrested. Respondent asserted that the police officers and the tow truck employees know each other and that the police sided with the employee even though respondent was the victim (Tr ). Respondent submitted the police report and photographs of his vehicle taken on January 30, The police report indicates that while respondent was inside Mike s Towing parking lot, respondent drove his vehicle into the driver s side of another vehicle multiple times. While attempting to flee the scene, respondent struck the driver of that other vehicle twice in the right leg. Respondent then struck another vehicle (Resp. Ex. A). The photographs show extensive damage to respondent s taxi on the front, side, and rear of the vehicle (Resp. Ex. B). Respondent testified that the photographs are consistent with him being rammed multiple times by the tow truck and are inconsistent with the police report that he struck two other vehicles multiple times (Tr , 26-28). Respondent denied striking any vehicles and claimed that he was the victim of an aggressive pound employee who was harassing him. Respondent also asserted that he is not a threat to the public safety as evidenced by his documentary evidence and that this arrest happened only because he was trying to help a passenger at the airport as per

4 - 4 - TLC s rules. Respondent stated that he has been driving a taxi for five years without a problem. Moreover, he was given a desk appearance ticket only and was offered a plea for disorderly conduct and $150 fine and/or community service. He did not accept the plea because he did nothing wrong (Tr. 34, 37-39). There is no dispute that respondent was arrested and charged as stated. This tribunal has found an arrest notification sufficient to establish petitioner s prima facie case that a respondent has been arrested for the charges listed therein. Taxi & Limousine Comm n v. Singh, OATH Index No. 1704/08 at 9 (Mar. 5, 2008). Respondent seeks a determination on the merits of the underlying arrest or criminal charges that is beyond the purview of this hearing. See also Taxi & Limousine Comm n v. Aitlhoucine, OATH Index No. 1306/08 at 4 (Jan. 11, 2008) (OATH has no authority to evaluate the merits of the underlying criminal charge ). Even if respondent s version of the events were considered, his own testimony suggests that he is a risk to the public safety. Respondent admitted getting into his taxi, starting the engine, and driving it out of the pound without paying the towing fees while a pound employee tried to stop him. Respondent was very likely upset that his vehicle had been towed, that he had to take various means of transportation, including walking in the cold without a jacket, to get to the pound, and that he was unable to work that night because he had helped a passenger at the airport. Respondent s claim that he started the taxi only after the employee punched him for no apparent reason, was not credible. While it is plausible that the employee subsequently rammed respondent s vehicle with a tow truck, it is also possible that this occurred because respondent struck the two vehicles in the pound as well as the employee in his attempt to leave the pound without paying. Petitioner contends that respondent s on-duty arrest for assault in the third degree, reckless endangerment, avoiding payment, and leaving the scene of a personal injury accident, has a nexus to his qualifications for continued licensure and is sufficient to demonstrate that he poses a threat to the public safety. Respondent did not argue that these charges, if true, are not evidence of a risk to public safety. This tribunal has found that proof of an arrest for these types of offenses establishes a prima facie case that the licensee s continued licensure during the pendency of the criminal charges would pose a threat to the health or safety of the public. See, e.g., Taxi & Limousine Comm n v. Motala, OATH Index No. 1465/14 (Feb. 6, 2014) (arrest for assault in third degree sufficient to continue suspension); Taxi & Limousine Comm n v. Al-kafi,

5 - 5 - OATH Index No. 580/14 (Nov. 7, 2013) (arrest for leaving the scene of an accident sufficient to continue suspension); Taxi & Limousine Comm n v. Springle, OATH Index No. 1011/08 (Nov. 30, 2007) (among other charges, arrest for reckless endangerment sufficient to continue suspension); Taxi & Limousine Comm n v. Stanicic, OATH Index No. 1223/08 (Dec. 18, 2007). FINDING AND CONCLUSION Petitioner demonstrated by a preponderance of the evidence that respondent poses a risk to the public safety. RECOMMENDATION Respondent s TLC license should remain suspended during the pendency of his criminal case because, if true, the crimes for which he was arrested establish that he poses a threat to the public safety. July 2, 2015 SUBMITTED TO: MEERA JOSHI Commissioner/Chair APPEARANCES: STEVEN GUERRERO, ESQ. Attorney for Petitioner PAPA KHOUMA Respondent Self-represented Alessandra F. Zorgniotti Administrative Law Judge

6 Deputy Commissioner s Decision Pursuant to TLC Rule 68-15, a summary suspension hearing was held on June 26, 2015, as a result of respondent s January 19,2015 arrest for Assault in the third degree, Reckless Endangerment in the second degree, Avoiding Payment and Leaving the Scene of a personal injury accident. After hearing the evidence presented, the presiding Administrative Law Judge ("ALJ") found that sufficient allegations existed to keep respondent s medallion driver license on suspension pending the outcome of his criminal case. On July 7, 2014, respondent was mailed a copy of the ALJ's decision and a letter advising him of the right to submit a written response within ten (10) days to the Chairperson. More than ten days have passed and respondent has failed to submit any written comments. Under Rule 68-15(d)(l)(B), the Chairperson "can summarily suspend a License based upon an arrest or citation if the Chairperson believes that the charges, if true, would demonstrate that continued licensure would constitute a direct and substantial threat to public health or safety." Such charges include assault in the third degree, reckless endangerment in the second degree and leaving the scene of an accident. Inasmuch as respondent was alleged to have committed assault, reckless endangerment, payment avoidance and leaving the scene of a personal injury accident, 1 I concur with the ALJ's recommendation to keep his license on suspension pending the final outcome of the criminal case. These charges, if substantiated, demonstrate that respondent s continued licensure during the pendency of the criminal charge would pose a threat to the health and safety of the public. Therefore, I accept the ALJ's recommendation to keep respondent s TLC license on suspension pending the final outcome of his criminal case. Christopher C. Wilson Deputy Commissioner/General Counsel 1 Page 2 of the Report and Recommendation references the 2009 finding by the Southern District of New York that the "post-suspension hearing provided by the Commission's rules has been found sufficient to comply with due process." Nnebe v. Daus, 665 F. Supp. 2d 31, 328 (S.D.N.Y. 2009). The Report did not mention that the Second Circuit has remanded the matter to the District Court for further fact-finding.