Taxi & Limousine Comm n v. Crow-Martinez OATH Index No. 0084/18 (Aug. 18, 2017)*

Transcription

1 Taxi & Limousine Comm n v. Crow-Martinez OATH Index No. 0084/18 (Aug. 18, 2017)* Following respondent s arrest for unlawfully soliciting ground transportation services at an airport, petitioner suspended his driver s license. At a summary suspension hearing for continuation of the license suspension, ALJ found petitioner s evidence insufficient to establish that continuation of respondent s license during the pendency of the criminal case against him would render a direct and substantial threat to the public health and safety, even if the charge were true. ALJ recommends that the suspension of respondent s license be lifted. * Respondent s license was restored by petitioner on September 19, NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner - against - ALVARO CROW-MARTINEZ Respondent REPORT AND RECOMMENDATION INGRID M. ADDISON, Administrative Law Judge The Taxi and Limousine Commission ( TLC or petitioner ) commenced this summary suspension proceeding against respondent, Alvaro Crow-Martinez, a licensed TLC driver, pursuant to the Commission s rules, title 35 of the Rules of the City of New York (RCNY), and the New York City Administrative Code. See 35 RCNY 68-15(d) (Lexis 2017); Admin. Code (a) (Lexis 2017). The Commission suspended respondent s license after it received notice that he was arrested on February 28, 2017, and charged with the unlawful solicitation of ground transportation services at an airport, in violation of section 1220-b of the Vehicle and Traffic Law. Petitioner seeks to continue the suspension until a final disposition in respondent s criminal case, on grounds that respondent s licensure while the criminal case is pending would pose a direct and substantial threat to the health or safety of the public (ALJ Ex. 1).

2 - 2 - At a trial on August 16, 2017, petitioner relied on documentary evidence. Respondent, who was represented by counsel, presented documentary evidence but declined to testify as his criminal case is pending. For the following reasons, I find petitioner s evidence insufficient to continue suspension of respondent s taxi driver s license and recommend that said suspension be lifted. ANALYSIS Section (a) of the Administrative Code authorizes the Commission to suspend a driver s license prior to giving notice and opportunity for a hearing for good cause shown relating to a direct and substantial threat to the public health or safety. Under the Commission s rules, the Chairperson may 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 and safety. 35 RCNY 68-15(d)(1). The rules enumerate charges upon which the Chairperson may suspend a license. 35 RCNY 68-15(d)(1). The Commission must notify a licensee of its summary suspension within five days of such action, and the licensee may request a hearing within ten calendar days from receipt of such notice. 35 RCNY 68-15(a)(3), (b)(1). Petitioner presented a printout from the WebCriminal ( WebCrims ) page of the New York State Unified Court System website (Pet. Ex. 2). It showed that on February 28, 2017, respondent was arrested and charged with a class B misdemeanor for the unlawful solicitation of ground transportation at an airport, in violation of section 1220-b(1) of the Vehicle and Traffic Law. Veh. & Traf. Law 1220-b(1). Under the charged section: A person unlawfully solicits ground transportation at an airport, when, at an airport, such person, without being authorized to do so by the airport operator, or without having made a prior agreement to provide ground transportation services to a specific person, engages or offers to engage in any business, trade or commercial transaction involving the rendering to another person of any ground transportation services from such airport. Veh. & Traf. Law 1220-b(1) (Lexis 2017). Upon learning of respondent s arrest, petitioner suspended his license. establish respondent as a licensee (Pet. Ex. 1). Petitioner s only other submission was a printout from its database to

3 - 3 - Petitioner prefaced its presentation by characterizing this case as an anomaly because the unlawful solicitation of ground transportation at an airport is not identified in the list of charges enumerated in the Commission s rules upon which the Chairperson may suspend a license. Yet petitioner acknowledged that the list is not exhaustive. As a precursor to the enumerated charges, the rule states that [s]uch charges include but are not limited to the following: 35 RCNY 68-15(d)(1). Petitioner stated that based upon a rash of solicitation offenses by TLC licensees, its Chairperson had made a determination at some time in 2016, that such an offense presented a direct and substantial threat to public safety. There was nothing to support counsel s representation. Thereafter, petitioner rested. Respondent argued against the sufficiency of petitioner s evidence and sought to have his license suspension lifted. Respondent, whom it was undisputed, drives a for-hire vehicle, presented a copy of the New York City Police Department s online arrest report and the arrest worksheet, the latter of which was handwritten (Resp. Exs. A, B). They indicated that the basis for respondent s arrest was as follows: At [time and place of occurrence] defendant solicited undercover officer coming out of LaGuardia Airport Terminal C Arrivals by using the word taxi. When officer gave destination to Yankee Stadium, driver stated take yellow cab. The criminal court complaint against respondent reflected that respondent was seated in his vehicle when he offered an undercover officer ground vehicle transportation as a vehicle for hire without permission or authority to do so (Resp. Ex. C). Respondent hastened to point out that section 80-19(c) of petitioner s rules which addresses Limits on Driver Solicitation of Passengers in For-Hire Vehicles, calls for revocation of a license only after a third instance of solicitation, that this is the first time that respondent is alleged to have engaged in solicitation, and that this rule is inconsistent with the rule under which respondent was charged. Section 80-19(c)(2) of the Commission s rules prohibits a driver from soliciting or picking up passengers at the New York City Airports other than by prearrangement through a licensed Base of the class that can dispatch the driver s for-hire vehicle.... For a first violation of the rule, the driver is fined $2,000. For a second violation in 24 months, the penalty is $4,000. For a third violation in 120 months, the penalty is $10,000 and revocation. Petitioner discounted respondent s argument with the contention that by focusing on the penalties reflected in Chapter 80 of its rules, respondent is conflating penalties for administrative violations with those for criminal arrests. While the existence of a rule that carries a lighter penalty

4 - 4 - does not, by itself, render another rule under which the TLC may secure a more stringent penalty, inconsistent or inapplicable, petitioner did not provide a reasonable explanation for its suspension of respondent s license which could ultimately result in revocation, other than the fact that the unlawful solicitation of ground transportation services at an airport is a particularized violation of the Vehicle and Traffic Law, and a misdemeanor crime. The Commission s rules provide that at the summary suspension hearing, the issue to be determined 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 the health or safety of the public. 35 RCNY 68-15(d)(3). The Commission has long adopted the position that the rule requires a presumption that all the elements of the crime charged are true. See Taxi & Limousine Comm n v. Mirakov, Comm r/chair Dec. (Jan. 8, 2008), rejecting, OATH Index No. 1053/08 (Dec. 7, 2007); Taxi & Limousine Comm n v. Adjoor, Comm r/chair Dec. (Dec. 20, 2007), rejecting, OATH Index No. 1044/08 (Dec. 7, 2007). In Nnebe v. Daus, 184 F. Supp.3d 54, 66 (S.D.N.Y. 2016), a case which has meandered its way through the District and Circuit Courts and back, in addressing the issue of the immediate suspension of a driver s TLC license following notification of the driver s arrest, the District Court found that under the Commission s regulatory scheme, the real question is whether the charges underlying the driver s arrest reflect a threat to public safety. This tribunal has often held that the Commission must establish a nexus between respondent s arrest and a risk of harm to the public. See Taxi & Limousine Comm n v. Basar, OATH Index No. 874/12 at 2 (Jan. 20, 2012), adopted, Comm r/chair Dec. (Feb. 8, 2012); Taxi & Limousine Comm n v. Aitlhoucine, OATH Index No. 1306/08 at 2 (Jan. 11, 2008), adopted, Comm r/chair Dec. (Feb. 7, 2008); Taxi & Limousine Comm n v. Ali, OATH Index No. 1015/08 at 2 (Nov. 30, 2007), adopted, Comm r/chair Dec. (Dec. 18, 2007). In so far as a nexus is concerned, the District Court expressed that the primary if not exclusive consideration... is whether the statutory crime charged is on the TLC s list of relevant offenses and that this list reflects the fact that the TLC has already determined that certain crimes are sufficiently connected to public health or safety for the purposes of the nexus inquiry. 184 F. Supp.3d at 68. Respondent did not challenge that the section of the TLC rules under which he was charged is not all inclusive. However, he maintains that the criminal charge against him is not of the caliber

5 - 5 - of the enumerated charges, the commission of which would undoubtedly pose a direct and substantial threat to the public. I agree. The familiar canon of interpretation noscitur a sociis or the ejusdem generis rule, as it is more popularly known, is generally applied to interpret the meaning of ambiguous words in relation to adjacent words in a statute. See McKinney s Statutes 239 ( words employed in a statute are construed in connection with, and their meaning is ascertained by reference to the words and phrases with which they are associated. ). I see no reason why this canon should not be applicable here. Under section 68-15(d)(1), the 18 enumerated crimes for which the Chariperson can summarily suspend a license pre-hearing include: Assault in the third degree; reckless endangerment in the second degree; criminal obstruction of breathing; sexual misconduct; forcible touching; sexual abuse in the third or second degree; promoting prostitution in the third, second, or first degree; compelling prostitution; sex trafficking; public lewdness; endangering the welfare of a child; criminal possession of a weapon in the fourth degree; overdriving, torturing, and injuring animals or failing to provide proper sustenance; leaving the scene of an accident; driving while impaired; operation of a vehicle while intoxicated; operation of a vehicle with an illegal blood-alcohol content; and driving while ability impaired by drugs. It seems clear that the unlawful solicitation of ground transportation at an airport is an offense which bears no relation to the foregoing particularized crimes. At trial, petitioner appeared to shrug off the need to advance a compelling argument as to what makes the unlawful solicitation of ground transportation at an airport a direct and substantial threat to the public. While section 68-15(d) contains a catch-all provision that would permit the Chairperson to declare certain criminal charges to be a direct and substantial threat to the public, the application of that catch-all provision should not be so wanton and unfettered that a driver has no notice that a prospective crime, not enumerated under the rule, may subject him to a loss of his license. Notably, section of the Administrative Code, the enabling statute which permits the pre-hearing suspension of a driver s license, expressly provides that the Commission may do so for good cause shown relating to a direct and substantial threat to the public health or safety. In fact, in a footnoted statement of legislative intent, the City Council expressed its understanding of the strong need for aggressive regulation of the taxicab and forhire vehicle industry and those directly responsible for the safety of the riding public. But, it also found certain rules promulgated by the Commission which modified the disciplinary

6 - 6 - measures that may be imposed against taxicab and for-hire vehicle drivers, taxicab and for-hire owners and taxicab medallion owners [to be] onerous. See Admin. Code (Lexis 2017); N.Y.C. Local Law 20 of 1999, 1. In sum, without more, I am hard-pressed to find that the underlying charge for which respondent was arrested poses a direct and substantial threat to public safety, and recommend that suspension of respondent s license pending the outcome of the criminal matter be lifted. FINDINGS AND CONCLUSIONS 1. Respondent licensee was placed on a summary suspension after petitioner was notified of his arrest for the unlawful solicitation of ground transportation services at an airport. 2. Petitioner has not established that the criminal charge against respondent implicates public safety and that it is therefore entitled to continue the suspension of respondent s license during the pendency of his criminal case. RECOMMENDATION I recommend that the suspension of respondent s TLC license be lifted during the pendency of his criminal case. August 18, 2017 Ingrid M. Addison Administrative Law Judge SUBMITTED TO: MEERA JOSHI Commissioner/Chair APPEARANCES: STAS SKARBO, ESQ. Attorney for Petitioner THE LEGAL AID SOCIETY Attorneys for Respondent BY: DIANE AKERMAN, ESQ.