Taxi and Limousine Comm n v. Manawar OATH Index No. 169/11 (Aug. 13, 2010)

Transcription

1 Taxi and Limousine Comm n v. Manawar OATH Index No. 169/11 (Aug. 13, 2010) In a default proceeding, petitioner proved that a taxicab driver overcharged passengers on 350 occasions. ALJ recommended revocation of license and $850 fine. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- MUNIR MANAWAR Respondent REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This license revocation proceeding was referred by the Taxi and Limousine Commission ( TLC or Commission ), pursuant to the New York City Administrative Code and Title 35 of the Rules of the City of New York ( RCNY ). Munir Manawar, a taxicab driver, is charged with overcharging passengers 351 times between December 1, 2008, and December 11, 2009, by using an improper fare rate, in violation of 35 RCNY section 2-34(a) (Lexis 2009). After respondent failed to appear for the hearing scheduled for July 26, 2010, petitioner submitted proof of service sufficient to establish that it sent the petition and notice of hearing to respondent at the address he provided to TLC (Pet. Exs. 1, 2). Thus, petitioner placed respondent on notice that TLC was seeking to revoke his hack license and to impose a fine. Based on this evidence, I found respondent in default and the hearing continued in his absence. At the hearing petitioner relied upon documentary evidence. I find that petitioner proved that respondent overcharged passengers 350 times during a 12-month period and recommend that respondent s hack license be revoked and he be fined $850.

2 - 2 - ANALYSIS Since 2007 the Commission has required that all taxicabs be equipped with a taxicab technology system. 35 RCNY 1-01, 3-06(a) (Lexis 2009). The system known as TPEP, among other things, employs a global positioning system to collect and transmit trip data about each trip a driver makes. See 35 RCNY 3-03(e)(6) (Lexis 2009). TLC recently conducted an investigation into whether drivers were overcharging passengers by improperly using rate 4 when driving passengers within New York City. Based on TPEP-generated data, petitioner alleges here that respondent overcharged passengers on 351 occasions from December 1, 2008 to December 11, A TLC employee who worked exclusively with TPEP for almost two and a half years created a database through which he could investigate whether drivers were overcharging passengers by improperly using rate code 4 (Pet. Ex. 3 the Royter affirmation, at 2). According to the Royter Affirmation, meters equipped with TPEP display the fare, surcharges, and the rate number for the trip (Pet. Ex. 3). At the start of each trip, the driver manually sets the rate by pushing a button. The driver can push a button to change the rate during the trip. There are five rate codes currently installed in taxicab meters which are designated according to the type of trip: (1) for point-to-point trips within New York City; (2) for flat-rate trips to and from JFK airport and Manhattan; (3) for trips to Newark airport which employ a surcharge; (4) for trips to Nassau and Westchester counties from New York City ( rate code 4 trips); and (5) for trips to New Jersey, upstate New York, and Suffolk County, which have negotiated fares. Rate code 4 doubles the rate code 1 fare and should be activated by the driver when the taxicab enters Nassau or Westchester County. Rate 4 is designed to compensate drivers for their return trip to New York City because they are prohibited from picking up fares in Nassau or Westchester (Pet. Ex. 3). There are three brands of taxi meters authorized for installation in New York City taxicabs (Pet. Exs. 3, 3B). Each brand employs a slightly different method of engaging and changing rates. In this case, taxicabs used by respondent were equipped with two types of meters from Creative Mobile Technologies ( CMT ), the Pulsar and the Centrodyne. On the Pulsar meter, rate code 4 is activated by pressing the rate code 1 button and then pressing the fourth button on the meter. On the Centrodyne meter, rate code 4 is activated by pressing the rate button twice. (The rate button is pressed once to activate rate 1).

3 - 3 - According to a report of data analyzing respondent s trip sheets, respondent improperly activated rate code 4 for trips that originated and ended in New York City on 350 occasions (Pet. Ex. 3C). The report excludes all trips ending in Nassau or Westchester counties, duplicate trips, and trips where rate code 4 was activated during the last 20 percent of the ride (Pet. Ex. 3 at 3). A detailed electronic trip sheet report of respondent s fares during the period August 19, 2009 to August 20, 2009, reveals the beginning and end point for three of the overcharges alleged and the amounts overcharged (Pet. Ex. 4). In one, respondent charged rate 4 for a trip originating at Laguardia Airport and ending on West 23 rd Street in Manhattan for a fare of $ In another, respondent charged rate 4 for a trip originating at West 33 rd Street in Manhattan and ending on Lexington Avenue in Manhattan for a fare of $7.80. In the third, respondent charged rate 4 for a trip originating and ending in Queens for a fare of $ Rule 2-34(a) states that a driver shall not charge or attempt to charge a fare above the approved rates. 35 RCNY 2-34(a). The unrebutted evidence shows that respondent overcharged passengers by improperly using the rate 4 fare. There is no evidence that respondent s meter was malfunctioning or that he did not know how it worked. It is unlikely that activation of rate 4 was triggered unintentionally as it required the driver to push the button twice to start rate 4. Moreover, the large number of rate 4 activations for trips within New York City suggests these acts were indeed deliberate. In any event, none of these explanations were asserted by respondent, who failed to appear and defend against the allegations. For these reasons, I find that respondent overcharged passengers on 350 occasions in violation of TLC rules. FINDINGS AND CONCLUSIONS 1. Respondent was properly served with the petition and notice of hearing. 2. From December 1, 2008 to December 11, 2009, respondent overcharged passengers on 350 occasions, in violation of 35 RCNY section 2-34(a).

4 - 4 - RECOMMENDATION Petitioner seeks revocation of respondent s hack license and a fine of $850. Respondent did not appear at the hearing so there was no challenge to the penalty sought and no mitigating circumstances presented. Under the circumstances, I find revocation of respondent s license to be appropriate. Respondent has been found guilty with uncontroverted evidence of a pattern of overcharging passengers on 350 separate occasions by the intentional unauthorized use of his taxi meter. This is serious misconduct for which revocation of his license is appropriate. Taxi and Limousine Comm n v. Cheema, OATH Index No. 1450/10 (Jan. 21, 2010) (license revoked on proof that driver overcharged passengers 574 times within one-month period by improperly using rate code 4). Members of the riding public should be able to trust that taxicab drivers will be honest in their dealings with them and this conduct is an egregious breach of trust. Rule 2-87 sets forth the penalties for overcharge violations under rule 2-34 (for one violation, a fine of $200 to $350, for a second violation in 24 months, a fine of $350 to $500 and no more than a 30-day suspension, and revocation for three violations within a 36-month period). However, the manner in which such penalties are to be imposed is open to some question. That is, the rule requiring revocation for any driver found to have violated stated provisions three times within a thirty-six month period suggests the provision ought be applied to respondent here. However, another provision of the same rule raises the question of whether the rule requires multiple adjudications before imposing successive penalties leading to revocation ( Any driver who has been found in violation of any of the provisions of such rules or any combination thereof, for a second time within a twenty-four month period ) (emphasis added). To be sure, imposing revocation for the volume of overcharges proven here, even on a first adjudication, is unlikely to shock the conscience. Cf. Pell v. Bd. of Education, 34 N.Y.2d 222 (1974). However, in light of the uncertainty surrounding its applicability, I hesitate to use rule 2-87 as the basis for revocation, on the possibility that it may be later determined that separate adjudications were necessary under the rule. The Commission has other powers to revoke, however, and rule 2-87 specifically authorizes their use. See 35 RCNY 2-87(a)(1) ( Nothing contained herein shall limit or restrict any other authority the Commission may have to suspend or revoke a driver s license. ). Thus,

5 - 5 - the Commission cites its powers under rule 8-03(b) which provides, in pertinent part, that [i]n the alternative to any of the specific penalties set forth in the Commission rules, the Commission may, in its discretion, impose a penalty of license revocation... and/or a fine not to exceed $1,000 for each violation against a licensed driver. 35 RCNY 8-03(b)(ii) (Lexis 2009); see also Admin. Code (l) ( The commission may, after a hearing, suspend or revoke any driver s license for failure to comply with any provision of this chapter applicable to licensed drivers or for failure to comply with the commission s rules and regulations. ). I find it appropriate to revoke respondent s license in accordance with rule 8-03(b). See Taxi and Limousine Comm n v. Michaud, OATH Index No. 3012/10 (July 20, 2010); Taxi and Limousine Comm n v. Pedalino, OATH Index No. 2820/10 (July 14, 2010). In addition, petitioner requests that respondent be fined $850 which I find not to be excessive. See Michaud, OATH 3012/10 at 4; Pedalino, OATH 2820/10 at 4. Accordingly, I recommend revocation of respondent s hack license and the imposition of a fine in the amount of $850. August 13, 2010 SUBMITTED TO: DAVID YASSKY Commissioner/Chair APPEARANCES: CHARLES TORTORICI, ESQ. Attorney for Petitioner No appearance by Respondent Tynia D. Richard Administrative Law Judge