Commissioner determined licensee s conduct was sufficiently serious to warrant license revocation and he imposed that penalty.

Transcription

1 Dep't of Buildings v. Inglese OATH Index No. 929/10 (Feb. 4, 2010), modified on penalty, Comm r Dec. (Apr. 23, 2010), appended, remanded sub nom Inglese v. LiMandri, 2010 NY Slip Op 32967U; 2010 N.Y. Misc. LEXIS 5146 (Sup. Ct. N.Y. Co. 2010) One-year suspension recommended where respondent pled guilty in 2004 to conspiracy to commit extortion. Even though the crime demonstrated poor moral character, petitioner failed to establish that respondent is currently unfit to work as a hoist machine operator. Respondent performed job consistently for five years after his release from prison, when petitioner renewed his license in 2005, 2006, 2007, 2008, and 2009, in spite of respondent s repeated disclosure of his conviction on his annual renewal applications. Commissioner determined licensee s conduct was sufficiently serious to warrant license revocation and he imposed that penalty. On appeal, court noted petitioner presented no evidence at the OATH hearing of the job responsibilities of a hoist machine operator or whether it required elements of integrity or trust. Instead, in rendering his decision, the Commissioner relied upon testimony given at a subsequent hearing to establish the safety sensitive nature of respondent s work and the need for integrity among hoist machine operators. The court found it was improper for the Commissioner to rely on evidence outside the hearing record to establish necessary facts. The court annulled the Commissioner s determination and remanded the matter to reinstate the penalty recommended by the ALJ a one year license suspension. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - LOUIS INGLESE Respondent REPORT AND RECOMMENDATION INGRID M. ADDISON, Administrative Law Judge

2 -2- This proceeding was referred pursuant to section of the New York City Administrative Code. Petitioner, the Department of Buildings, alleged that respondent, Louis Inglese, a licensed hoist machine operator who pled guilty in 2004 to the federal crime of conspiracy to commit extortion, violated section of the Administrative Code, which requires its licensees to be of good moral character (ALJ Ex. 1). At a hearing on January 19, 2010, petitioner presented documentary evidence only. Respondent, who appeared with counsel, did not testify. His counsel argued that respondent had served time for his crime, and that since his release from prison in 2005, petitioner had repeatedly renewed respondent s license. Therefore, counsel asserted that petitioner should be precluded from seeking revocation of respondent s license. I find that petitioner established that respondent violated section of the Administrative Code, renumbered as section However, for the following reasons, I find that revocation is not an appropriate remedy. Instead, I recommend suspension of respondent s license for one year. ANALYSIS The facts are not disputed. Respondent has been licensed as a hoist machine operator for approximately ten years. On September 22, 2004, respondent pled guilty to participating in a scheme to extort Local 14 of the International Union of Operating Engineers by assigning preferential or no show jobs to individuals selected by and associated with the Genovese organized crime family, for the period spanning 1997 through February During his plea allocution, respondent admitted that for approximately five months, ending in February 2002, he was accorded preferential treatment in securing work as an operating engineer at Rockefeller University, knowing that someone else was being economically harmed as a result (Pet. Ex. 2 at 6, 12-14). As a result of his guilty plea, respondent was sentenced to one year and one day in a federal penitentiary, and three years of supervised release, and fined $3,000 (Pet. Ex. 1). 1 The petition, which was poorly drafted, charged respondent with violating subsections (6) and (13) of section of the Administrative Code. At trial, petitioner withdrew one charge because it was duplicative. The remaining charge erroneously listed (6) of the new Building Code, which became effective in July 2008, instead of (13). However, this was not fatal to petitioner s case because the petition sufficiently informed respondent of the conduct at issue, and the section of the old Code that he allegedly violated, and also pointed him in the general direction of the requirements under the new Code. See 48 RCNY 1-22 (Lexis 2009).

3 -3- Respondent s guilty plea and conviction formed the sole basis for the charge that he lacks good moral character. Respondent did not testify. His counsel argued that respondent had paid his debt to society, and further, that the acts for which respondent was convicted occurred approximately eight years ago. According to counsel, since his release from prison, respondent had resumed his job as a hoist machine operator, and had worked arduously. He explained that respondent s license had been renewed in 2005, 2006, 2007, 2008, and November 2009, even though respondent had disclosed his conviction on each renewal application. Thus, counsel contended that petitioner should be barred from seeking to deprive respondent of his right to earn a living after so many years. Prior to July 2008, section of the Administrative Code ( old Building Code ) referenced good moral character as one of the basic qualifications for license applicants. That requirement is embodied in section of the new Code. See Admin. Code Section of the new Code broadly empowers the Commissioner to suspend or revoke a license or to impose a fine of up to twenty-five thousand dollars, and/or to order the licensee to repair damage resulting from prohibited conduct enumerated under the section, including poor moral character. Admin. Code (13). Neither the old nor new Code specifically defines poor moral character, or enumerated the specific acts that constitute poor moral character. However, this tribunal has consistently found acts involving bribery, extortion, and the intentional submission of false records to be demonstrable evidence of such character. See Dep t of Buildings v. Taylor, OATH Index No. 1501/07 (June 20, 2007) (plumber s conviction for failure to file IRS forms for disbursements to a contractor whom he engaged, directly related to his business or trade and demonstrated poor moral character); Dep t of Buildings v. Borrazzo, OATH Index No. 128/06 (Oct. 28, 2005) (plumber s bribery conviction directly related to his business or trade, and exhibited poor moral character); Dep t of Buildings v. Figliolia, OATH Index No. 1520/05 (Apr. 6, 2005), aff d, Comm r Dec. (Apr. 21, 2005) (plumber s criminal conviction for enterprise corruption displayed poor moral character); Dep t of Buildings v. Gabbidon, OATH Index No. 1073/03 (Aug. 4, 2003) (master electrician s intentional submission of false certified payroll records to a city agency to conceal his failure to pay the prevailing wage rate and benefits to two employees evinced poor moral character); Dep t of Buildings v. Giles,

4 -4- OATH Index No. 1635/03 (June 27, 2003) (plumber s conviction for extortion establishes poor moral character). Based upon the irrefutable evidence of respondent s plea and conviction for conspiracy to commit extortion, I find petitioner established that respondent demonstrated poor moral character, in violation of section of the Administrative Code, renumbered as section FINDING AND CONCLUSION Petitioner established that respondent violated section of the Administrative Code, renumbered as section , in that he demonstrated poor moral character when he engaged in the criminal act of conspiracy to commit extortion, for which he pled guilty and was convicted in federal district court. RECOMMENDATION For his commission of an offense that was demonstrable of poor moral character, petitioner seeks revocation of respondent s hoist machine operator s license. Petitioner s website states that its overall mission is to facilitate compliant development with integrity, efficiency and professionalism. 2 With few exceptions, this tribunal has recommended license revocation where, as here, the charged misconduct is proven by a judgment of conviction. Borrazzo, OATH 128/06 (master plumber s license revoked after bribery conviction); Figliolia, OATH 1520/05 (master plumber s license revoked after conviction for enterprise corruption); Dep t of Buildings v. Lara, OATH Index No. 1446/03 (May 6, 2003) (master plumber s license revoked after conviction for extortion); Dep't of Buildings v. Robinson, OATH Index No. 1117/02 (Mar. 11, 2002) (expeditor s license revoked where he failed to disclose on his license application that he had been convicted of a felony involving drug sales, citing the public safety issues inherent in the work of expediters); Dep't of Buildings v. Catapano, OATH Nos. 1066/97, 1091/97, 1122/97 & /97 (July 17, 1997) (licenses of six master plumbers were revoked after convictions for bribe receiving); Dep t of Buildings v. Casa, OATH Index No. 975/97 (May 14, 1997) (master plumber s license revoked after conviction for attempted bribery of a building inspector); Dep t 2 See

5 - 5 - of Buildings v. Troiano, OATH Index No. 1013/97 (Apr. 14, 1997) (master plumber s license revoked after conviction for receiving unlawful gratuities). In one exception, this tribunal recommended a two-year suspension rather than revocation of a master plumber s license. In that case, respondent was convicted of failing to file IRS forms for certain disbursements to a contractor. The Administrative Law Judge concluded that this established misconduct that was directly related to his business or trade, and demonstrated poor moral character that adversely affected his fitness to conduct a plumbing business. See Dep t of Buildings v. Taylor, OATH Index No. 1501/07 (June 20, 2007), adopted, Comm r Dec. (Aug. 24, 2007). The judge noted that Taylor was a case of first impression before this tribunal, in that previously-litigated license revocation cases involved more clearly defined acts of corrupt behavior, which were not as evident from the skeletal facts of Taylor s plea allocution. Another exception was Department of Buildings v. Gelb, OATH Index No. 1298/97 (Nov. 12, 1997), aff d, Comm r Dec. (Apr. 21, 1998). There, the respondent, a master electrician, pled guilty, and was convicted in 1990, of engaging in a scheme to defraud the City of approximately $200,000, by submitting inflated invoices for two city jobs on which he had worked in 1985 to 1986, five years prior. The judge acknowledged the grave moral turpitude of respondent s crime, and how it conflicted with the integrity that is required of a master electrician, but applied the Correction Law 3 as a guide in arriving at an appropriate penalty recommendation. In particular, the judge noted that respondent had admitted his guilt, paid a fine, served time in jail, and lost his business, which had previously generated approximately $10 million and employed close to 150 electricians. Also, respondent expressed contrition, and presented evidence of his rehabilitation, including letters of recommendation from his rabbi, and a friend, who made reference to respondent s involvement in charitable and community work. Gelb, at Above all, the crime for which Gelb had been convicted, had taken place eleven to twelve years prior to the time that the Department sought to revoke his license. Id. at In Gelb, the judge referred to Department of Buildings v. Casa, OATH Index No. 975/97 at 6-7 (May 14, 1997), adopted, Comm r Dec. (Sept. 30, 1997), where the administrative law judge found that the factors set forth in section 753 of the Correction Law may be used as a guide in determining whether license revocation is appropriate. Since then, section of the Administrative Code has been amended to provide that suspension or revocation of a master electrician license where the licensee has been previously convicted is subject to the Correction Law. Admin. Code (Lexis 2010).

6 2010). 4 Petitioner did not establish that respondent s conviction adversely impacted upon his The judge further noted that the criminal conviction is but one factor, albeit an important one, in weighing... present fitness. As the conviction becomes distant in the past, its importance diminishes, and other indicators of his integrity, and of his rehabilitation, become more important. Id. at 16, citing Dep t of Buildings v. Gelb, OATH Index No. 2155/96 (Mar. 3, 1997), aff d, Sup. Ct. N.Y. Co. Index No /97, Decision and Order (Dec. 11, 1998). Accordingly, the judge declined to recommend revocation of respondent s license, and instead recommended an 18-month suspension, which the Buildings Commissioner adopted. Here, petitioner s move to have respondent s license revoked was challenged by respondent s counsel because eight years had elapsed since respondent s criminal activity, and petitioner had repeatedly renewed respondent s license on five consecutive occasions. This tribunal has maintained that good moral character is not only a requirement for the granting of a license, but an implied requirement for its retention. Dep t of Buildings v. Gabbidon, OATH Index No. 1073/03 at 4 (Aug. 4, 2003). Furthermore, under both the old and new Building Codes, good moral character is an integral qualifier for the issuance of a license. However, while evidence that a licensee engaged in activity demonstrable of poor moral character strongly supports a recommendation of revocation, evaluation should be made on a case-by-case basis. This is implicitly underscored in the new Code which provides not only for revocation where the licensee demonstrates poor moral character that adversely reflects on his or her fitness to conduct work regulated by [the] code, but also gives the Commissioner the option of imposing a lesser penalty of suspension and/or a fine. Admin. Code (Lexis fitness to perform his job. In Gelb, the director of the Bureau of Electrical Control testified as to the specific duties and responsibilities of a master electrician, which included supervising electricians, vouching for the experience and qualifications of his employees and the safety of their work, and self-certifying violations as corrected. Trust and integrity were therefore integral components of a master electrician s job, which directly implicated public safety. 4 The relevant section of the Code provides that, The Commissioner shall have the power to suspend or revoke a license or certificate of competence and/or to impose a fine not to exceed twenty-five thousand dollars for each finding of violation for any of the following: 13. Poor moral character that adversely reflects on his or her fitness to conduct work regulated by this code;. Admin. Code

7 - 7 - Accordingly, were it not for the significant passage of time between Mr. Gelb s crime and the revocation proceedings, and the substantial evidence of his rehabilitation, his involvement in a scheme to defraud the City would have been sufficient to warrant revocation of his master electrician s license. Petitioner presented no evidence of the job responsibilities of a hoist machine operator, or whether it required elements of integrity or trust. Petitioner did not dispute that it renewed respondent s license in 2005, 2006, 2007, 2008, and 2009, in spite of respondent s repeated disclosure of his criminal conviction. At no time during those years did petitioner question respondent s fitness to do his job. Nor did it allege that there were any complaints against respondent that were job-related, or that respondent had engaged in any further acts constituting poor moral character. There was no indication that respondent had not been rehabilitated, even though rehabilitation, by itself, does not divest an agency of its prerogative to seek to revoke a license where the licensee s conviction demonstrated poor moral character. See Bonacorsa v. NYS Racing & Wagering Board, 71 N.Y.2d 605 (1988). However, revocation requires a finding that there is a direct relationship between the criminal conviction and the license sought, or that there is an unreasonable risk to the safety or welfare of the public. Even so, revocation may not be proper where the relationship between the conviction and the license sought is sufficiently attenuated. 5 Id. at Petitioner did not assert that there was a nexus between the crime for which respondent was convicted and his license. Nor was one apparent. In that regard, I note that the preferential job which respondent obtained and for which he was convicted was an operating engineer s job. Moreover, respondent s technical competence was not challenged, and there was no indication that the public s safety was at risk. In addition, the maximum sentence and fine for conspiracy to commit extortion were 20 years and $250,000. Respondent was sentenced to one year and one 5 Article 23-A of the Correction Law, enacted in 1976, imposed an obligation on employers and public agencies to deal equitably with ex-offenders while also protecting society s interest in assuring performance by reliable and trustworthy persons. Thus employers and public agencies cannot deny employment or a license to an applicant solely based on status as an ex-offender. But the statute recognizes exceptions either where there is a direct relationship between the criminal offense and the specific license or employment sought (Correction Law 752(1), or where the license or employment would involve an unreasonable risk to persons or property (Correction Law 752(2). Even where a direct relationship exists, the agency or employer must consider factors enumerated under section 753(1) [of the Correction Law] to determine whether in fact the direct relationship is sufficiently attenuated to warrant issuance of the license. See Bonacorsa, at

8 - 8 - day, and fined $3,000, suggesting that his involvement in the conspiracy was not major (Pet. Ex. 2 at. 6). This analysis is consistent with that undertaken in Gelb. I find the factors enumerated under the Correction Law which were used as a guide in determining the appropriate penalty there to be equally relevant here. 6 See Gelb, OATH 1298/97 at 11. In sum, while respondent s conviction demonstrated poor moral character, the acts for which he was convicted occurred more than eight years ago. Since his release from federal prison in 2005, respondent s license was renewed on five occasions, and he has worked as a hoist machine operator without incident or complaint. Moreover, I find that the crime for which he was convicted, albeit one of moral turpitude, was sufficiently attenuated to his duties as a hoist machine operator, and neither adversely affected his duty to perform the job nor endangered public safety. See Soto v. NYS Office of Mental Retardation and Developmental Disabilities, 2010 N.Y. Slip Op U; 2010 N.Y. Misc. LEXIS 121 (Sup. Ct. Kings Co. Jan. 29, 2010) (finding no risk to public safety after approximately six years had elapsed between respondent s arrest for criminal possession of a weapon, and his job application to drive buses that transport mentally retarded and developmentally disabled persons). Accordingly, I decline to recommend revocation of respondent s license as an appropriate penalty. I am nonetheless mindful that respondent s criminal offense occurred not long after he had been issued a hoist machine operator s license. At the time of his initial application, good moral character was a pre-requisite in the Building Code for the issuance and maintenance of a hoist machine operator s license, which respondent is deemed to have known. To reinforce petitioner s mission, good moral character continues to be an overarching principle in the new Code. Thus, petitioner s failure to immediately prosecute respondent does not preclude it from belatedly seeking enforcement for a violation of its rules. See Dep t of Buildings v Grand Concourse, OATH Index No. 2242/99 at 4 (Oct. 22, 1999) (finding it unreasonable for 6 The enumerated factors that employers are required to consider, include: this state s policy to encourage the licensure and employment of individuals with prior criminal convictions; the specific duties and responsibilities related to the license sought; the time that elapsed since the commission of the criminal offense; the bearing of the criminal offense for which the applicant was convicted on the job or license sought; the time that elapsed since the occurrence of the criminal offense; the applicant s age at the time of the criminal offense; the seriousness of the offense; any supporting information produced by respondent or someone on his behalf regarding his good conduct and rehabilitation; and the legitimate interest of the public agency, and the safety and welfare of specific individuals or the general public. Correc. Law 753 (1)(a) (h) (Lexis 2010).

9 - 9 - respondent to have relied upon a governmental delay alone as an assurance that no action would ever be taken). Petitioner, as well as the public, has a right to expect integrity and good behavior from petitioner s licensees. Penalizing respondent for a violation of petitioner s rules therefore acts as a deterrent, and sends a message to similarly situated licensees. For all of the foregoing reasons, I recommend that respondent s license be suspended for one year. February 4, 2010 Ingrid M. Addison Administrative Law Judge SUBMITTED TO: ROBERT D. LiMANDRI Commissioner APPEARANCES: CAMIE DART, ESQ. DEBRA HERLICA, ESQ. Attorneys for the Petitioner MURRAY RICHMAN, ESQ. Attorney for Respondent

10 NYC Department of Buildings Comm r Decision, April 23, 2010 In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - LOUIS INGLESE Respondent ROBERT LIMANDRI, Commissioner DECISION I have completed my review of Office of Administrative Trials and Hearings Judge Ingrid M. Addison's Report and Recommendation in this matter (OATH Index No 929/10, Feb ), along with the record and transcript of the proceedings. During the January 19, 2010 OATH hearing, the Department submitted unrebutted evidence of respondent s conviction and involvement in a conspiracy to commit extortion through certified copies of the Judgment and plea allocution from his criminal case (Report and Recommendation at 3). While I agree with the finding of OATH Judge Addison in her Report and Recommendation that respondent violated the moral character requirement of the Administrative Code, 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 Addison. See, for example, decision of Administrative Law Judge Kevin F Casey dated April 9, 2010 in Lawrence Persico (license No 7555) OATH Index No. 994/10, as well as the many cases cited by Judge Addison in the second paragraph of her recommendation here The only two cases Judge Addison cited in support of a penalty less than revocation are distinguishable legally and factually from those presented here. In Department of Buildings v Taylor, OATH Index No. 1501/07 (June 20, 2007) the plea related to Taylor's failing to file an IRS form reporting income paid to a contractor. Here, respondent pled guilty to conspiracy to commit extortion at a construction site, a crime that itself evinces serious corruption in the construction industry. The second case Judge Addison cited, Department of Buildings v. Gelb, OATH Index No. 1298/97 (Nov ), affd, Comm r Dec. (Apr ) suggests that the Correction Law factors be considered in determining the appropriate penalty. Correction Law sections 752

11 and 753 do not apply because a) they were not raised by respondent s counsel below as relevant. and b) sections 752 and 753 of the Correction Law do not apply in a license revocation proceeding for discipline to a current license holder. Dep t of Buildings v Casa, OATH Index No 975/97 (May ) adopted. Comm r Dec (Sept ), citing Pietranico v. Ambach, 82 AD 2d 625 (3d Dep't 1981). aff'd, 55 NY 2d 861 (1982). Revocation is the appropriate penalty in this case even should the factors cited in Correction Law sections 752 and 753 be considered. The Department of Buildings 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. Indeed, as Judge Addison acknowledged in her recommendation, the Department s overall mission is to facilitate compliant development with integrity, efficiency and professionalism" (Report and Recommendation at 4). Respondent s acts of receiving and providing preferential treatment for construction jobs are sufficient to establish poor moral character that adversely reflects on his fitness to hold a licensed position in the construction industry (Tr. at ). Respondent s age at the time of the conviction (35) and the time the crime was committed two to three years earlier; the absence of any evidence other than a letter from his spouse relating to his moral character; the seriousness of the crime and its direct relationship to and involvement in the construction industry committed soon after respondent received his initial HMO license all support my determination that revocation is the appropriate remedy Finally, as indicated by Judge Addison the Department has renewed respondent s license in the past despite disclosure on forms of the conviction however, this does not estop or otherwise preclude the Department from instituting this disciplinary proceeding and revoking his license at this time. Based upon the foregoing, I accept Judge Addison's findings and determination that respondent s conviction constituted poor moral character, and reject Judge Addison's Recommendation to suspend his 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. ROBERT LIMANDRI, Commissioner, NYC Department of Buildings