Dep t of Buildings v. Manchester OATH Index No. 467/15 (Jan. 28, 2015) Hoist machine operator, whose driver s license was revoked upon his conviction for driving while intoxicated, failed to maintain a valid driver s license for the term of his hoist machine operator s licensure. ALJ found that he was not qualified to hold the hoist machine operator s license, engaged in conduct that endangered public safety, and demonstrated poor moral character. ALJ recommended revocation of hoist machine operator s license. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - HAROLD MANCHESTER Respondent REPORT AND RECOMMENDATION ASTRID B. GLOADE, Administrative Law Judge Petitioner, the Department of Buildings ( Department ), brought this action seeking to revoke the Class B hoist machine operator license issued to respondent, Harold Manchester, pursuant to sections 28-401.19(6), (11), and (13) of the Administrative Code ( Construction Code ) and title 1, section 104-09 of the Rules of the City of New York. Petitioner asserted that respondent, who was convicted for driving while intoxicated, failed to maintain a valid driver s license for the entire term of his hoist machine operator s license, as required, was negligent, incompetent, lacked knowledge or disregarded applicable law and rules, engaged in conduct that endangered the public safety and welfare, and demonstrated poor moral character that adversely reflected on his fitness for licensure. At the hearing, petitioner relied upon documentary evidence and the testimony of one witness. Respondent, who was represented by counsel, testified on his own behalf. The record was held open until November 17, 2014, for the submission of written summations. For the reasons set forth below, I find that the charges are sustained and recommend revocation of respondent s hoist machine operator s license.
- 2 - PRELIMINARY MATTER At the commencement of the hearing, respondent renewed his application, made a few days before the scheduled start of the hearing, to adjourn the proceeding because a stay of the enforcement of title 1, section 104-09 of the Rules of the City of New York may have been issued in a matter pending before Judge Paul Wooten of the Supreme Court of New York County (Tr. 4-5). The case, Christian v. City of New York, et al., Index No. 102788/12, is an Article 78 proceeding challenging recent amendments to this section (Tr. 4-5). Respondent maintained that petitioner s counsel had agreed to provide a letter from the New York City Law Department attorney representing New York City in Christian regarding the existence of the stay, but failed to do so (Tr. 5). Respondent asserted that in light of petitioner s failure to provide the letter and his inability to review the case file in Christian without an appointment, the hearing should be adjourned (Tr. 4-5). Petitioner s counsel opposed adjournment of the hearing, contending that she had been advised by the New York City Law Department attorney handling the Article 78 proceeding that Judge Wooten had not issued a stay of enforcement of section 104-09 and, further, that the Article 78 litigation did not challenge the subsection of the rule at issue in this case, the driver s license requirement (Tr. 5-6). Applications for adjournment of an OATH trial are addressed to the discretion of the administrative law judge, and shall be granted only for good cause. 48 RCNY 1-32(b) (Lexis 2014). Pendency of other litigation is not a sufficient basis for adjournment of an OATH trial. Dep t of Correction v. Noriega-Harvey, OATH Index No. 575/93, mem. dec. at 5-7 (Feb. 17, 1993) (request for an adjournment or stay denied where respondent cited no authority, and requested adjournment solely because a related complaint was filed in a federal forum); see also Fire Dep t v. Harper, OATH Index No. 503/14, mem. dec. at 3-5 (Jan. 21, 2014). The burden of establishing good cause for the adjournment lies with the moving party. Noriega-Harvey, OATH 575/93 at 7. Here, respondent failed to establish good cause for the requested adjournment. While respondent contended that a stay of enforcement of relevant law may have been imposed in the Article 78 proceeding, he offered no proof that the court had ordered such a stay, nor was there
- 3 - evidence that respondent made diligent efforts to review the court file to determine whether such a stay had been imposed. Accordingly, respondent s request was denied. 1 In respondent s post-hearing brief he acknowledged that Judge Wooten did not issue a temporary restraining order or injunction, but requested that the charges be dismissed and the existing suspension of his license be continued until the pending Article 78 proceeding is decided, on the ground that a decision in that matter might annul the relevant section (Respondent s Memorandum ( Resp. Mem. ) at 6-7). Respondent s request is, in essence, to hold this matter in abeyance pending the outcome of the Article 78 proceeding. That request is denied. See Fire Dep t v. Domini, OATH Index No. 2047/11, mem. dec. at 4-5 (July 28, 2011) (respondent s request for indefinite postponement of disciplinary hearing pending completion of his related federal lawsuit denied); see also Askinazi v. Police Dep t of New York, 25 A.D.2d 429 (1st Dep t 1966) (finding it was a palpable abuse of discretion to restrain administrative disciplinary proceedings pending the outcome of a related civil proceeding). ANALYSIS Respondent, who holds a Class B hoisting machine operator ( HMO ) license, has been licensed by the Department for 31 years (Pet. Ex. 1; Tr. 43). On March 3, 2011, respondent was arrested in Nassau County for driving while intoxicated (Pet. Ex. 7 at 1). On April 30, 2012, respondent pled guilty to violating Vehicle and Traffic Law section 1192.3, a misdemeanor offense (Pet. Ex. 7 at 2; Pet. Ex. 3 at 2; Tr. 47-48). Respondent was convicted upon a guilty plea and sentenced to the use of an ignition interlock device for five years, four months of imprisonment, revocation of his driver s license for one year, and five years of probation (Pet. Ex. 2). On April 5, 2012, a few weeks before his guilty plea, respondent s HMO license was renewed (Pet. Ex. 1). On August 21, 2014, the Department suspended respondent s HMO license because of his conviction (Pet. Ex. 1). Frank Damiani, the Department s Assistant Chief for the cranes and derricks unit, has worked with that unit for nine years (Tr. 21). He testified that a Class B HMO license is the 1 Before the record in this matter closed, petitioner submitted a letter from the attorney representing the Law Department in Christian v. City of New York, dated November 3, 2014, which stated that Judge Wooten had not ordered a stay of the relevant section (Letter from Selvin to Gloade, dated Nov. 3, 2014). The letter is hereby made part of the record as ALJ Exhibit 2.
- 4 - greatest license, issued to hoist machine or crane operators, meaning that it is unrestricted by capacity or boom length and its holder may operate any type of crane (Tr. 23-24). According to Mr. Damiani, a crane operator s primary responsibility is the safe operation of the crane (Tr. 35). On a typical day, a crane operator reviews construction drawings to ensure that the crane is located in the correct area of the jobsite, discusses with the work crew the material that they will be lifting and the area of the jobsite in which they will be working, and reviews a daily checklist to ensure that the crane is in good working order prior to its use (Tr. 26, 36-37). Crane operators are responsible for lifting heavy objects such as steel, rebar, and concrete from the street to the building under construction (Tr. 36-37). By way of example, Mr. Damiani testified that if a crane operator is working on a poured concrete building, he or she would be lifting concrete buckets, 16,000 pound buckets into the building all day long (Tr. 37). He testified that Class B HMO licensees typically operate large cranes on the large projects, such as the construction of high-rise buildings (Tr. 26-27). Because Class B HMO licensees move heavy objects on busy construction sites in densely populated areas, they must be alert and conscientious (Tr. 37). Petitioner alleges that because respondent was convicted for driving while intoxicated and his driver s license was revoked, he does not meet the requirements for licensure and is unfit to hold an HMO license. Petitioner maintains that its rules require HMO licensees to possess a valid driver s license effective for the term of the license, which respondent failed to do. Petitioner further contends that revocation of respondent s license is warranted because: (1) his conduct constitutes negligence, incompetence, lack of knowledge, or disregard of this code and related laws and rules (Admin. Code 28-401.19(6)); (2) he engaged or assisted in action that endangered the public safety and welfare (Admin. Code 28-401.19(11)); and (3) he demonstrated poor moral character that adversely reflects on his fitness to conduct work regulated by the New York City Construction Code (Admin. Code 28-401.19(13)). Failure to Maintain a Valid Driver s License The Department s rules provide that applicants and renewal applicants for an HMO license shall possess a valid driver s license effective for the term of the [HMO license or renewal] sought. 1 RCNY 104-09(a)(1), (b)(3) (Lexis 2014). As a result of respondent s conviction, his license was revoked in July 2012 (Pet. Exs. 3, 4). Petitioner contends that its
- 5 - rules require that respondent maintain a valid driver s license for the entire term of his licensure, which he failed to do. Respondent maintains that he is not subject to the requirement that an HMO licensee hold a valid driver s license because his license was renewed before the license requirement became effective. According to respondent, the language in subsection 104-09(b)(2)(ii) establishes that the license requirement would seem to have only come into affect [sic] for Class B HMO licenses that were renewed on or after July 1, 2013 (Resp. Mem. at 5). This argument is premised on a misreading of the rule. Section 104-09(b) sets forth the [f]itness requirements for renewal and reinstatement and states that Class A, B, and C HMO operators are required to provide evidence of fitness as specified in the subsections that follow. Subsection 104-09(b)(2)(ii) states that a Class B HMO licensee whose license is renewed or reinstated on or after July 1, 2013, is required to submit [v]alid national certification(s) as specified in that provision. Respondent seeks to import the July 1, 2013 date from subsection 104-09(b)(2)(ii) into subsection 104-09(b)(3), which only provides that [a] renewal applicant shall possess a valid driver s license effective for the term of the renewal sought. The starting point of statutory construction is the plain language of the statute. See Nostrom v. A.W. Chesterton Co., 15 N.Y.3d 502, 507 (2010) ( the text of a provision is the clearest indicator of the enactors intent, and courts should construe unambiguous language to give effect to its plain meaning ) (citation omitted). On its face, section 104-09(b)(3) does not specify a date after which the license requirement became effective for renewal applicants, unlike the provision regarding valid national certifications. Moreover, the July 1, 2013 effective date is in a separate and distinct subsection of the rule. Therefore, respondent s assertion that the license requirement became effective as to Class B HMO license renewals after July 1, 2013, is belied by the plain language of the rule. Indeed, rule 104-09(b)(3) became effective on February 2, 2011. See City Record, Jan. 3, 2011, at 10, col. 1-2. Respondent also challenges rule 104-09(b)(3), arguing that it is arbitrary and capricious and not rationally related to its intended purpose (Resp. Mem. at 2). While respondent acknowledges that New York City may have had a well intentioned motive in seeing that crane hoisting machine operators perform their vital services in a sane, safe, and sober manner he asserts that the requirement that HMO licensees maintain a valid driver s license has little or no
- 6 - rational relationship to that purpose (Resp. Mem. at 5). Respondent notes that although Mr. Damiani testified that a crane operator is required to have a valid license, he acknowledged that having a driver s license does not make any difference in how the crane operator actually operates the crane (Resp. Mem. at 5; Tr. 39-40). To the extent that respondent is challenging the validity of the rule on its face, such a challenge is more appropriately addressed to the courts because there is a distinction between a factual challenge to a law as applied, which this tribunal has jurisdiction to hear, and a facial challenge to the validity of a law, which may not be heard in this tribunal. See Matter of Tenants of 51-55 West 28 th Street, OATH Index No. 1019/05, mem. dec. at 6 (Nov. 7, 2005); Dep t of Buildings v. 31 West 11 th Street, OATH Index No. 990/94 at 3-5 (Aug. 26, 1994), aff d, Bd. of Stds. and Apps. No. 165-94-A, reprinted in, 80 Bulletin of Bd. of Stds. and Apps. 193 (May 4, 1995), aff d sub nom, Hiesiger v. City of New York, NYLJ, Nov. 6, 1996, at 26, col. 1 (Sup. Ct. N.Y. Co.); Police Dep t v. Roman, OATH Index No. 356/91 at 23 (Apr. 26, 1991), aff d, 198 A.D.2d 143 (1st Dep t 1993) (citing Roberts v. Coughlin, 165 A.D.2d 964 (3rd Dep t 1990)); see also Martinez v. Bell, 468 F. Supp. 719, 726 (S.D.N.Y. 1979) (although federal administrative hearing may serve to resolve any factual disputes that may exist in regard to compliance, or noncompliance with the statute, it is for the federal courts, and not for the administrative body, to determine the constitutionality of the statute itself). The evidence establishes that following respondent s conviction by guilty plea he was sentenced to revocation of his license for one year and use of an ignition interlock device for five years, among other penalties (Pet. Ex. 4). A certified abstract of respondent s New York State Department of Motor Vehicles driving record indicates that his driver s license status is revoked as of the date of the abstract, August 22, 2014, and there is no evidence in the record that the revocation was lifted (Pet. Ex. 3). Accordingly, petitioner has established that respondent does not possess a valid driver s license that is effective for the period of his renewal license as is required by the Department s rule. Negligence, Incompetence, Lack of Knowledge Section 28-401.19(6) of the Administrative Code provides that the Commissioner may suspend or revoke a license for negligence, incompetence, lack of knowledge or disregard of the Construction Code. Petitioner alleges that respondent s license should be revoked pursuant to
- 7 - this provision based upon his conviction for driving while intoxicated and the revocation of his driver s license (ALJ Ex. 1). Here, the Department s rules require that its HMO licensees possess a valid driver s license effective for the term of his or her license. Respondent has not maintained a valid driver s license effective for the term of his HMO license and has thus failed to meet one of the requirements for licensure. While the Construction Code does not define incompetence, reference to the general definition of the term is useful for assessing whether respondent falls within the ambit of section 28-401.19(6). The definition of incompetence includes the quality or state of not being competent, and incompetent is defined as not legally qualified. See Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/incompetence (last visited Jan. 21, 2015); Merriam-Webster Online Dictionary, http://www.merriamwebster.com/dictionary/incompetent (last visited Jan. 21, 2015). Respondent has not satisfied a requirement for licensure and is therefore not qualified. Because failure to meet the criteria for licensure renders the licensee unqualified, this tribunal has revoked the license of a licensee who failed to maintain a valid driver s license when required to do so by the licensing entity s rules. See Taxi & Limousine Comm n v. Ali, OATH Index No. 435/15 (Sept. 3, 2014) (taxicab driver s Taxi and Limousine Commission-issued license revoked where respondent s New York State-issued driver s license was revoked); Taxi & Limousine Comm n v. Rashid, OATH Index No. 436/15 (Sept. 3, 2014) (same); Taxi & Limousine Comm n v. Abdul-Haq, OATH Index No. 955/10 (Oct. 30, 2009), adopted, Comm r Dec. (Dec. 2, 2009) (same); see also Dep t of Parks & Recreation v. Lawson, OATH Index No. 415/92 (Apr. 20, 1992), aff d, NYC Civ. Serv. Comm n Item No. CD 93-4 (Feb. 9, 1993) (respondent found incompetent because he did not have a valid driver's license as required for his position); Dep t of Parks & Recreation v. Cox, OATH Index No. 1069/90 (June 20, 1990) (where respondent s position as a climber and pruner required him to hold a valid driver s license, suspension of his license meant that he did not currently hold a valid license and was therefore incompetent to hold his position). Accordingly, I find that respondent s failure to maintain a valid driver s license during the renewal period of his HMO license renders him incompetent under this provision.
- 8 - Public Safety and Poor Moral Character Petitioner alleges that by driving while intoxicated, for which respondent was convicted and his driver s license revoked, respondent engaged in conduct that endangered public safety and welfare and that his conduct demonstrates poor moral character that adversely reflects upon his fitness to conduct work regulated by the code in violation of Administrative Code sections 28-401.19(11) and 28-401.19(13) (ALJ Ex. 1). The Supreme Court has recognized that good moral character is unusually ambiguous. Konigsberg v. State Bar of California, 353 U.S. 252, 263 (1957) (finding that youthful indiscretions and former membership in the Communist party, without more, do not rationally justify a finding that an applicant for a law license lacks good moral character). Despite this ambiguity, [a] lack of moral character can [ ] be shown by criminal conduct that poses a risk to public safety or directly relates to particular licensing requirements. Taxi & Limousine Comm n v. Corrales, OATH Index No. 259/08 at 4 (Aug. 24, 2007) (citing Mandel v. N.Y.S. Bd. of Regents, 250 N.Y. 173, 176 (1928).) Driving while intoxicated poses a threat to public safety and welfare because it endangers the driver, other motorists, passengers, and pedestrians. Accordingly, licenses have been revoked or denied for poor moral character based on criminal conduct such as driving while intoxicated. See Biggerstaff v. Drago, 65 A.D.3d 728 (3d Dep t 2009) (Third Department upheld revocation of respondent s pistol permit because respondent s conviction for driving while intoxicated called his judgment and character into question); Olivera v. Kelly, 23 A.D.3d 216, 216 (1st Dep t 2005) ( Petitioner s conviction of driving while impaired constitutes a rational basis for the Commissioner s finding that he has failed to maintain the requisite good moral character for issuance of a handgun license. ). This is true even when licensee s criminal conduct occurred while he or she was off duty. Taxi & Limousine Comm n v. Corrales, OATH 259/08 at 5 (finding that respondent taxi driver s conviction for driving while intoxicated while he was off-duty showed poor moral character, noting that there is a rational link between respondent s conviction for driving while intoxicated and his continuing fitness to maintain a license to drive for-hire vehicles... [drivers] are entrusted with the safety of passengers, other drivers, and pedestrians ). Respondent contends that his conviction in Nassau County does not make him a threat to the people of New York City. He reasons that although his conviction may have posed a threat
- 9 - to public safety of Nassau County, there is no evidence of any act by respondent that actually endangered public safety and welfare to the public of the City of New York as a result of his being a hoist machine operator (Resp. Mem. at 3). Such a geographic distinction is without basis. Respondent s conduct evinces a disregard for public safety and respondent pointed to no authority for his claim that only consideration of the safety implications for residents of New York City merit consideration. Respondent also argues that he suffers from the disease of alcoholism and that petitioner s attempt to prove that he lacks moral character because of his driving while intoxicated conviction is a vestige of a long discredited and very ignorant view (Resp. Mem. at 6). This argument is without merit. Respondent s criminal conduct, driving while intoxicated, is the basis for concluding that he lacks the moral character for licensure, not his alcoholism. Here, respondent s criminal conduct endangered public safety. Moreover, there is a nexus between his criminal conduct and his continued fitness to maintain a HMO license. Therefore, respondent demonstrated poor moral character that adversely reflects upon his fitness to hold an HMO license. FINDINGS AND CONCLUSIONS 1. Respondent failed to possess a valid driver s license effective for the term of his renewal license as is required by rule 104-09. 2. Petitioner proved that respondent s conviction for driving while intoxicated and the subsequent revocation of his driver s license rendered him incompetent in violation of Administrative Code 28-401.19(6). 3. Petitioner proved that respondent engaged in conduct that endangered the public safety and welfare when he drove while intoxicated, which resulted in his conviction and revocation of his driver s license, in violation of Administrative Code 28-401.19(11). 4. Petitioner proved that respondent demonstrated poor moral character that adversely reflects on his fitness to conduct work regulated by the Construction Code when he was convicted for driving while intoxicated and his driver s license was revoked, in violation of Administrative Code 28-401.19(13).
- 10 - RECOMMENDATION Section 28-401.19 of the Construction Code provides that the Commissioner may suspend or revoke a license and/or impose a fine not to exceed twenty-five thousand dollars for each finding of a violation of the Construction Code. Petitioner seeks revocation of respondent s hoist machine operator license, which is appropriate. Although the question of whether an HMO operator who drove while intoxicated, for which he was convicted and his driver s license revoked, is fit to hold an HMO license appears to be one of first impression for this tribunal, we have recommended revocation of the licenses of taxi drivers who have driven under the influence of alcohol while off-duty, finding their continued licensure a threat to public safety. Taxi & Limousine Comm n v. Khaimov, OATH Index No. 1872/08 (Mar. 25, 2008) (finding continued licensure of for-hire vehicle driver a threat to public safety where respondent was convicted for driving while impaired); Taxi & Limousine Comm n v. Fuentes, OATH Index No. 201/08 at 6 (Aug. 28, 2007) ( Any [for-hire vehicle] driver who has been shown to have driven a vehicle after drinking even one time may constitute a threat to the safety of future passengers, as well as to other motorists and pedestrians. ); Taxi & Limousine Comm n v. Heras, OATH Index No. 1919/13 (Apr. 25, 2013) (respondent was a risk to the public safety when he was convicted for driving a vehicle while impaired). In assessing the risk to public safety of respondent s conviction, this tribunal has considered the factors set forth in Article 23-A of the New York State Correction Law, which prohibits [u]nfair discrimination against ex-offenders in employment or licensure unless there is a direct relationship between the criminal offense and the specific license sought or held, or the continuation of the license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. N.Y. Correct. Law 752 (Lexis 2014); Khaimov, OATH 1872/08 at 3 (citing Taxi & Limousine Comm n v. Louissaint, OATH Index No. 1627/08 at 2-3 (Mar. 11, 2008)). Having a direct relationship means that the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license, opportunity, or job in question. N.Y. Correct. Law 750(3) (Lexis 2014). Factors that are to be considered in assessing the previous criminal conviction are: 1) the public policy of the state to encourage licensure of persons previously convicted; 2) the specific duties and responsibilities
- 11 - relating to licensure; 3) the relationship between the offense and fitness or ability to perform those duties; 4) the time that has elapsed since the commission of the crime; 5) the age of the licensee; 6) the seriousness of the offense; 7) any information relating to the licensee s rehabilitation and good conduct; and 8) the interest of the public agency in protecting the general public. N.Y. Correct. Law 753 (Lexis 2014); Khaimov, OATH 1872/08 at 3; Louissaint, OATH 1627/08 at 3. Here, both of the exceptions in Article 23-A apply. There is a direct relationship between operating a vehicle while intoxicated and fitness to properly perform the responsibilities of operating a hoist machine. As an HMO licensee, respondent is charged with operating cranes that carry large and heavy construction material on busy construction sites in a densely populated city. Respondent s operation of the crane has implications not only for his safety, but also for that of his co-workers and the residents of New York City who live and travel near the construction sites where the crane is in operation. As petitioner s witness testified: [E]verybody knows, if you re driving a car, a 3 or 4,000 pound car and you got, you know, you re distracted or impaired in some way, I mean, the potential to have an accident or something to cause injury is great. So you can imagine running a 3 or 400,000 pound heavy piece of equipment that swings over the street all day, pedestrians and public and then swings into a job that may have 100 people working it, if you don t have your wits about you, there s a lot of potential for some serious injury there. (Tr. 28-29). Crane operators hold safety-sensitive positions and must be alert and careful while performing their duties. Moreover, to safely perform their duties, they must exercise the utmost care and sound judgment. Considering the factors set forth in the Correction Law, I find that continuation of respondent s HMO license would pose an unreasonable risk to property and to public safety. Respondent s conviction for driving while intoxicated is a serious offense that involves operating a vehicle while his judgment and abilities were impaired. Louissaint, OATH 1627/08 at 6 (driving while intoxicated is an extremely serious offense for other motorists, passengers, and pedestrians). In addition, the Department has significant interest in protecting the public by ensuring that crane operators are sober, able to exercise good judgment, and fulfill their duties with care. Moreover, the nature of respondent s duties as a crane operator is incompatible with driving while intoxicated.
- 12 - There are some facts that weigh in respondent s favor. Respondent is a veteran of the armed services and worked at the World Trade Center site after the events of September 11, 2001. He testified that after his most recent arrest, he completed 30 days of in-patient rehabilitation and then six months of outpatient treatment and regularly attends Alcoholics Anonymous meetings (Pet. Ex. 3 at 2; Tr. 43-44, 49). Respondent has never received a violation from New York City for his work as a crane operator (Tr. 51). Another consideration in respondent s favor is New York s public policy in favor of the employment and licensure of exoffenders, as is reflected in the Correction Law. See Dep t of Buildings v. Mascarella, OATH Index No. 2757/10 at 5 (Dec. 22, 2010) modified on penalty, Comm r Dec. (Jan. 5, 2011). However, these facts are outweighed by other considerations, including that respondent, who was 54 years old at the time of the 2012 offense, is a mature adult and is responsible for his actions. This is particularly so given his history of alcohol-related convictions. Besides the April 2012 conviction, on July 30, 2010, respondent was convicted for driving with a blood alcohol content of.08% and in 2000, he pled guilty to driving while intoxicated (Pet. Exs. 3, 5, 6). In addition, in 1999 and 1984, respondent was convicted for driving under the influence, which charges were resolved by conditional discharge, fines, and/or suspension of his driver s license (Pet. Exs. 2, 7). Respondent maintains that many of his convictions are too remote to be relevant or are inadmissible under the Federal Rules of Evidence and New York Criminal Practice Law (Resp. Mem. at 2). It is true that some of respondent s convictions occurred long ago and are of limited relevance. See Police Dep t v. Arnold, OATH Index No. 377/07, mem. dec. at 5 (Aug. 22, 2006) (decade-old robbery conviction did not prove that respondent was a continuing threat ); Dep t of Buildings v. Gelb, OATH Index No. 1298/97 at 17 (Nov. 12, 1997), adopted, Comm r Dec. (Apr. 21, 1998) ( As the conviction becomes more distant in the past, its importance diminishes, and other indicators of his integrity, and of his rehabilitation, become more important ). The fact remains, however, that respondent was convicted for alcohol-related driving offenses in 2010 and 2012, and these recent convictions support the conclusion that respondent repeatedly displayed poor judgment and presents a risk to public safety. Further, his recent history of convictions for driving while intoxicated is especially troubling given that a mere two years elapsed between his 2010 and 2012 convictions, suggesting that he has little appreciation for the risk to the public created by his conduct.
- 13 - Accordingly, I recommend revocation of respondent s HMO license. January 28, 2015 SUBMITTED TO: RICK D. CHANDLER, P.E. Commissioner APPEARANCES: PATRICIA PENA, ESQ. Attorney for Petitioner DOUGHERTY, RYAN, GIUFFRA, ZAMBITO & HESSION Attorneys for Respondent BY: JOHN J. HESSION, ESQ. Astrid B. Gloade Administrative Law Judge