Taxi & Limousine Comm n v. Behar OATH Index No. 0076/17 (Oct. 14, 2016)

Taxi & Limousine Comm n v. Behar OATH Index No. 0076/17 (Oct. 14, 2016) In a discretionary revocation proceeding, petitioner proved that taxi driver harassed a passenger by exiting his taxicab and pursuing the passenger while continuously demanding a fare, and used physical force by grabbing his suit jacket and bag, and striking him in the face. Petitioner did not prove that respondent drove recklessly or acted against the best interest of the public by keeping the meter engaged when he exited the taxi. ALJ recommended revocation and a $2,000 fine. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner - against - MARIO BEHAR Respondent REPORT AND RECOMMENDATION NOEL R. GARCIA, Administrative Law Judge This license revocation proceeding was referred by petitioner, the Taxi and Limousine Commission ( TLC or Commission ), pursuant to the New York City Administrative Code and TLC s rules. Respondent Mario Behar, a taxicab driver, is charged with violating TLC s rules that prohibit reckless driving, acts against the best interests of the public, threats and harassment of a passenger, and use of physical force against a passenger (ALJ Ex. 1). A trial was held on August 25, 2016, during which petitioner presented evidence, including the testimony of the complaining passenger, Mr. McBarnette. Respondent was advised of his right to counsel, but chose to represent himself at trial without the assistance of an attorney and testified on his own behalf. For the violations alleged, TLC seeks revocation of respondent s hack license and the maximum fine. Based upon the trial record, petitioner established that respondent harassed a passenger by exiting his taxicab and following him while continuously demanding a fare, and used physical force against the passenger by grabbing and holding onto his bag, grabbing his suit jacket and

- 2 - striking him in the face. Petitioner did not establish that respondent drove recklessly by rearending another vehicle or acted against the best interest of the public by keeping the meter engaged when he exited his cab. I recommend revocation of respondent s taxicab driver s license and a fine of $2,000. ANALYSIS Section 54-12 of the TLC rules prohibits a licensee from deliberately performing any act that is against the best interests of the public; threatening, harassing, or abusing any person; and using physical force against a person in the performance of his or her duties or responsibilities as a licensee. 35 RCNY 54-12(e), (f), (g) (Lexis 2016). Rule 54-14(a) prohibits reckless driving, as defined by section 1212 of the NYS Vehicle and Traffic Law. 35 RCNY 54-14(a). Respondent is charged with reckless driving by rear-ending another taxicab while transporting a passenger, and with acting against the best interests of the public by keeping the meter engaged while he exited his taxicab and engaged in a dispute with the other driver. Respondent is also charged with harassing a passenger by running after him with the intention of engaging in a physical altercation, and with using physical force by grabbing a passenger s clothes and briefcase and turning him around, punching him in the face, and holding him by the wrist to prevent him from leaving (ALJ Ex. 1). The charges arise from an incident occurring at about 10:38 a.m. on the morning of June 16, 2016 (Pet. Exs. 2, 3; Tr. 29-30). Mr. McBarnette testified that on that day he hailed respondent s cab in Manhattan, and requested to go to Penn Station, as he was on his way to a business meeting in New Jersey (Tr. 29). As the taxi was traveling west on 31st Street, respondent s vehicle hit into the back of another cab (Tr. 30). Respondent got out of the cab and was arguing with the other driver. Mr. McBarnette could not hear what the two drivers were saying, but did see them pointing at the bumpers of the taxicabs (Tr. 31). While sitting in the cab, Mr. McBarnette noticed that the meter was still running, and took a picture of the medallion number displayed in front of him with his cell phone (Tr. 31-32). After a few minutes, he exited the cab, waved at the two drivers, and started walking on 31st Street towards Penn Station (Tr. 32). Mr. McBarnette acknowledged that he left the cab without paying the fare because there was no one to pay, he didn t know how long their discussion/argument was going to go, and he needed to get to work (Tr. 40). He added that

- 3 - since he did not get to his destination, and because respondent had an accident with another vehicle, it didn t occur to [him] that he should pay the fare (Tr. 71-72). As he walked towards Penn Station, the cab driver came up behind him, grabbed [his] suit jacket, and hit [him] in his face, but he did not know if respondent used a fist or an open hand (Tr. 37). Respondent then pulled on the strap of a briefcase Mr. McBarnette was holding with his right hand (Tr. 38). As respondent continued to hold and pull on the briefcase, a man interrupted them and advised them to stay calm and wait for the police (Tr. 39). As he and respondent both held on to his briefcase, Mr. McBarnette used his other hand to retrieve his cell phone from his pocket (Tr. 41). He explained that he dialed 911, but [i]t was hard for me to speak, so I had to try a few times and that on the third time, I was able to reach them and, and gave them my location and told them that there had been an assault (Tr. 41). Mr. McBarnette s phone record evidences that three calls were made from his phone to 911 at 10:45 a.m., 10:47 a.m., and at 10:53 a.m., respectively. After discussing the matter with the police officers who arrived on the scene, Mr. McBarnette agreed to pay the cab fare as long as the officers would escort him back to the taxi (Tr. 47). Upon returning to the taxi and discovering that the fare was up to $20-something and that the meter was still running, he refused to pay the amount displayed (Tr. 47-48). An agreement was reached by which he would pay $12.00 in full satisfaction of the fare (Tr. 48). Eventually, after some initial difficulties by respondent setting the meter to charge the agreedupon amount, a police officer used Mr. McBarnette s credit card to pay a fare of $12.90 (Pet. Exs. 6(d), (e); Tr. 48-51). By that point Mr. McBarnette had missed his meeting, and he returned home (Tr. 83). At approximately 2:27 p.m. on the date in question, Mr. McBarnette called 311 and filed a complaint with the TLC, whereby a TLC passenger complaint form was filled out with the information he provided (Pet. Ex. 1; Tr. 86-88). The complaint details portion of the TLC passenger complaint form states as follows: I was in the yellow taxi to Penn Station which rear ended another car, the 2 drivers got into a physical altercation for at least 20 minuets [sic]. At that point I got out of the cab, the driver took my briefcase and punched me in the face. 911 arrived, I then paid my fare but the meter did not work so the officer was rude as well.

- 4 - At trial, Mr. McBarnette clarified that he saw the two drivers engage in a verbal altercation, and not a physical altercation as described in the complaint form (Tr. 93). He also explained that said altercation lasted less than 20 minutes, and that the driver tried to take his briefcase, but that the briefcase never left his hand (Tr. 91, 94). However, he testified that the TLC complaint form was more or less accurate, and that the main point of his complaint was that he had been hit in the face by a cab driver (Tr. 87-88, 91). Respondent testified that he picked up Mr. McBarnette near the intersection of 54th Street and Second Avenue in Manhattan. As they proceeded towards Penn Station, Mr. McBarnette repeatedly told respondent that he was running late. Respondent testified that at some point during the ride, an enraged and aggressive driver came to his window, and an argument ensued. While still sitting inside the taxi, respondent told the other driver to leave us alone because my passenger is running late. Respondent denied rear-ending any vehicle (Tr. 112-13). A moment later, respondent heard a door slam shut behind him, and realized Mr. McBarnette had exited the cab and was walking away. The fare displayed on the meter at that time was $12.90. Respondent stated that he raised his voice and told Mr. McBarnette several times, Sir, you have to pay your fare, but he continued walking away (Tr. 113). Respondent exited his cab and followed after Mr. McBarnette, telling him several times to pay his fare. Respondent then came up from behind and touched him on the shoulder. Mr. McBarnette turned his face but continued walking. Respondent admitted that he grabbed the strap of a bag Mr. McBarnette was carrying. Mr. McBarnette tried to pull the bag away several times, but respondent held on to it, and said to him, You are not going away without paying your fare (Tr. 114-18). Respondent also called 911. While waiting for the police, respondent alleged that Mr. McBarnette began pointing at him, placing his finger an inch or two away from his face. Respondent claimed that he held Mr. McBarnette s wrist to prevent him from touching his face and not to restrain him, as alleged in the petition (Tr. 120-22). Respondent made a second and third call to 911. As respondent was making the third call, he saw and flagged down a passing police car (Tr. 123-25). Police department records indicate that on the date in question, respondent made three calls to 911 at 10:45 a.m., 10:50 a.m., and at 10:53 a.m., respectively.

- 5 - The records also indicate that respondent alleged that he had to chase his passenger, and that the passenger did not pay his fare (Resp. Ex. E). According to respondent, Mr. McBarnette told the police officers that he was physically abused, that he was punched, that he was pulled from the dress, etcetera. The police officers stated to him that since they did not see any evidence of a physical confrontation on his face or clothes, he would have to separately press charges. The police officers also advised Mr. McBarnette that he should pay the fare (Tr. 126-27). Subsequently, Mr. McBarnette agreed to pay the fare with a credit card and they returned to respondent s taxi. Respondent admitted that when he arrived at his taxi, he observed that the meter was still running and that the fare displayed was far away from the fare I, I witnessed when I jumped out of the car, $12.90 (Tr. 129). After some initial trouble resetting the meter to the correct fare, and with a police officer swiping Mr. McBarnette s credit card, respondent processed one charge for 31 cents, and a second charge for $12.59, for a total of $12.90. Mr. McBarnette was given receipts for the fare paid, and he left the area walking east (Tr. 130-34). In this proceeding, petitioner bears the burden of proof and must establish the charges by a preponderance of the credible evidence. See Taxi & Limousine Comm n v. Sobczak, OATH Index No. 1691/08 at 2 (Apr. 7, 2008), modified on penalty, Comm r/chair s Dec. (May 9, 2008). To the extent the parties have presented conflicting testimony on relevant facts, an assessment of witness credibility is required. Taxi and Limousine Comm n v. Blake, OATH Index No. 1138/94 at 4 (Aug. 22, 1994). In making credibility determinations, this tribunal may consider witness demeanor, consistency of a witness s testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness s testimony comports with common sense and human experience. Dep t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 4, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD 98-101-A (Sept. 9, 1998). Petitioner s evidence is credible. Mr. McBarnette testified in a compelling and consistent manner about his encounter with respondent on the day in question. Mr. McBarnette s version of events is generally supported by the passenger complaint report that was created when he called 311 about four hours after the incident took place (Pet. Ex. 5). Taxi and Limousine Comm n v. Haidery, OATH Index No. 2326/00 at 19-20 (Nov. 21, 2000), modified on penalty, Comm r Dec. (Mar. 12, 2001) (ALJ found witness testimony credible where it was consistent

- 6 - with his description to police at the scene, his phone complaint to the Commission, and his later statement to Commission investigator); Taxi and Limousine Comm n v. Raoul, OATH Index No. 752/99 at 5-6 (Feb. 8, 1999) (ALJ found complainant to be a truthful witness where her complaint made days after the incident offered a version of events very similar to her trial testimony). Specifically, the complaint report corroborates Mr. McBarnette s testimony that respondent s taxi rear ended another car and that the driver punched [him] in the face (Pet. Ex. 1). Further, Mr. McBarnette had no reason to lie or embellish his testimony, and none was offered at trial. Despite respondent s contention to the contrary, Mr. McBarnette s credibility was not impugned because he did not recall non-pertinent information such as if he made any phone calls after the police arrived on the scene or how much money he had in his wallet at the time of the incident. Respondent s testimony was less credible, and at times vague. For instance, respondent denied rear-ending another vehicle, but never provided a cogent explanation as to why an enraged and aggressive driver came to his window to argue with him. Throughout the trial respondent displayed a belligerent attitude, and proclaimed that going after the passenger was self-defense, that the passenger had abused him by leaving without paying the fare, and that he could not permit himself to lose this money (Tr. 194-95, 205). It was clear that respondent possessed both the motivation and temperament to react angrily against the passenger and use physical force. I also note that respondent never displayed any remorse for the admitted conduct of pursuing the passenger and grabbing his briefcase. Lastly, respondent had a compelling motive to deny any wrongdoing and avoid being penalized. TLC Rule 54-12(g) provides that [w]hile performing the duties and responsibilities of a Licensee or any act in connection with those duties, a Licensee must not use or attempt to use any physical force against a person.... 35 RCNY 54-12(g). There is no dispute that respondent grabbed the strap of Mr. McBarnette s briefcase or bag, and held onto the strap until the police arrived. I also find, based on Mr. McBarnette s credible testimony and the corroborating TLC passenger complaint form, that respondent grabbed Mr. McBarnette s suit jacket and hit him in the face. Respondent asserted an erroneous belief that he was justified in grabbing Mr. McBarnette s bag because he owed him the fare. See, e.g., Taxi & Limousine Comm n v. Ogieva, OATH Index No. 0034/16 at 9 (Oct. 5, 2015) (during a fare dispute, respondent used

- 7 - physical force against the passenger by grabbing and holding onto her purse which was on her arm, in violation of TLC Rule 54-12(g)). While respondent is entitled to demand the fare be paid, he may not touch a passenger in any way to force payment. Taxi and Limousine Comm n v. Dolley, OATH No. 1567/08 at 5-6 (Mar. 24, 2008) (driver may not resort to force during fare dispute). A driver s sole remedy for an unpaid fare is to involve the police, as a driver may not resort to self-help. Taxi and Limousine Comm n v. Nazir, OATH Index No. 1362/90 at 7 (Aug. 16, 1990), modified on penalty, Comm r Dec. (Oct. 25, 1990), aff d, Index No. 3124/91 (Sup. Ct. N.Y. Co. 1991) (driver who got out of the cab and grabbed [passenger] by the arm to restrain her from leaving without paying was clearly wrong ). Our cases demonstrate that, in accordance with TLC s rules, the only prudent recourse is to stay in the cab and call the police. See 35 RCNY 54-17(b)(1)(iii) (if a passenger refuses to pay, the driver must [p]roceed directly to the nearest precinct, present the facts to the police and follow their instructions for resolving the dispute ). Therefore, respondent is guilty of using physical force against the passenger by grabbing and holding onto his bag, grabbing his suit jacket and striking him in the face. Likewise, respondent violated TLC Rule 54-12(f), which provides that [w]hile performing the duties and responsibilities of a Licensee, a Licensee must not threaten, harass, or abuse any person. 35 RCNY 54-12(f). The credible evidence established that respondent got out of his taxi, pursued the passenger, and continuously demanded payment of the fare. Then, when Mr. McBarnette ignored his demands and continued walking, respondent deliberately continued after him in order to restrain him by holding on to his bag. Respondent s proven conduct constitutes abusive and harassing behavior. See Ogieva, OATH 0034/16 at 9 (during a fare dispute, taxi driver harassed a passenger by exiting his taxicab and approaching the passenger, and by yelling at the passenger); Taxi & Limousine Comm n v. Choo, OATH Index No. 720/16 at 6 (Nov. 24, 2015), adopted in part, Comm r Dec. (Dec. 21, 2015), modified on penalty, Comm n Dec. (Apr. 21, 2016) (during a fare dispute, taxi driver harassed a passenger by getting out of his taxi and approaching the passenger in a loud and verbally abusive manner). Petitioner did not prove the remaining charges. Petitioner alleged that respondent violated TLC Rule 54-12(e), which states that a licensee must not deliberately perform or attempt to perform... any act that is against the best interest of the public, although not specifically mentioned in these rules. 35 RCNY 54-12(e). Specifically, petitioner alleged that

- 8 - respondent violated this rule by keeping the meter running while he exited the cab and engaged in a dispute with another driver. While respondent claimed he left his vehicle to follow after the passenger, and not to argue with another driver, respondent acknowledged that he left the meter engaged when he exited the cab. Respondent testified, however, that the meter was left running inadvertently, and that when he pursued the passenger, he only requested a fare of $12.90 (Tr. 129-30). Upon returning to the taxi, respondent realized that the meter had continued to run, but did not charge or ask for the higher fare that was displayed. Mr. McBarnette acknowledged that he agreed to pay a fare of around $12.00, and was not charged the higher fare displayed on the meter when he returned to the taxi. Under these circumstances, I find that respondent did not deliberately keep the meter running, and the charge should be dismissed. Moreover, the evidence did not establish that respondent, by rear-ending another vehicle, violated TLC Rule 54-14(a), which prohibits reckless driving as defined by section 1212 of the NYS Vehicle and Traffic Law. The statute defines reckless driving as driving in a manner that unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Veh. & Traf. Law 1212 (Lexis 2016). While a rearend collision of a stopped or stopping vehicle creates a prima facie case of negligence against the driver of the rear-most vehicle, reckless driving under VTL 1212 calls for evidence showing something more than mere negligence. See Macauley v. ELRAC, Inc., 6 A.D.3d 584, 585 (2d Dep t 2004); People v. Goldblatt, 98 A.D.3d 817, 819 (3d Dep t 2012) (quoting Matter of Sheridan v. Fletcher, 270 A.D. 29, 32 (3d Dep t 1945). Instead, reckless driving is shown when a driver operates his vehicle in wanton disregard of the possible consequences to others on the road. See People v. Spencer, 129 N.Y.S.2d 474, 475 (County Ct. Schenectady Co. 1954). Thus, merely rear-ending another vehicle is not de facto evidence of reckless driving. See, e.g., Fletcher, 270 A.D. at 33 (a mere rear-end collision between a truck driver and a disabled bus did not render the truck driver s behavior reckless); Spencer, 129 N.Y.S.2d at 475 (evidence that defendant drove his automobile so as to collide with another was not sufficient to warrant a finding of reckless driving). Here, the only evidence presented to establish the charge was Mr. McBarnette s testimony that respondent rear-ended another taxicab. However, Mr. McBarnette testified he did not see any damage to the vehicles, and the alleged collision apparently did not cause any

- 9 - physical injury (Tr. 84). Further, petitioner presented no evidence as to the circumstances that caused or led up to the collision. In sum, Mr. McBarnette s testimony that respondent rear-ended another vehicle is, standing alone, insufficient to establish that respondent drove recklessly, and the charge should be dismissed. See Taxi and Limousine Comm n v. Dindi, OATH Index No. 761/12 at 3 (Jan. 6, 2012) (complainant s description that taxi driver was driving erratically was insufficient to establish a violation of the reckless driving rule). FINDINGS AND CONCLUSIONS 1. Petitioner proved that respondent harassed a passenger by exiting his taxicab and following him while continuously demanding a fare with the intent to engage in a physical altercation with him, in violation of TLC Rule 54-12(f). 2. Petitioner proved that respondent used physical force against a passenger who exited the taxicab without paying by grabbing and holding onto his bag, grabbing his suit jacket and striking him in the face, in violation of TLC Rule 54-12(g). 3. Petitioner did not prove that respondent acted against the best interests of the public by keeping the meter engaged when he exited his taxi. 4. Petitioner did not prove that respondent drove recklessly by rearending another vehicle. RECOMMENDATION Upon making these findings, I reviewed respondent s record as a taxi driver. Respondent has been licensed by TLC since December of 2013. His license has been suspended twice once for accumulating between 6 to 9 points on his DMV license, and once for failing to take an annual drug test. He was also found guilty and pled guilty to two non-hazardous moving violations (ALJ Ex. 2). The evidence established that respondent harassed a passenger by exiting his taxicab and following him while continuously demanding a fare and of using physical force against the

- 10 - passenger by grabbing and holding onto his bag, grabbing his suit jacket and striking him in the face. Petitioner seeks revocation of respondent s TLC license and the maximum fine allowed. Ensuring public safety is one of the most important responsibilities for which TLC is charged. Although license revocation is a severe penalty, it is appropriate in instances in which a taxicab driver uses physical force and threatens, harasses, or abuses passengers. Taxi & Limousine Comm n v. Issah, OATH Index No. 1879/15 at 7 (May 18, 2015) (revocation and $2,500 fine recommended for driver who used physical force and verbally threatened or harassed a passenger); Taxi & Limousine Comm n v. Marandi, OATH Index No. 2433/14 at 8-9 (Aug. 9, 2014) (revocation and $2,500 fine recommended for driver who pulled passenger out of the taxi and verbally threatened her); Taxi & Limousine Comm n v. Warren, OATH Index No. 1874/14 at 12 (July 25, 2014) (revocation and $2,850 fine recommended for driver who snatched money from passenger s hand and grabbed her to usher her out of the cab); Taxi & Limousine Comm n v. Barbosa, OATH Index No. 1490/09 at 9, 11 (Jan. 21, 2009) (license revoked where driver assaulted a passenger, hitting her in the face causing injury after she kicked the taxi and tried to push him away from her); Taxi & Limousine Comm n v. Jonathan, OATH Index No. 2307/08 at 6-7 (June 9, 2008) (license revoked where taxi driver, who had a long history of rule violations, repeatedly pushed and attempted to prevent passenger from leaving the taxicab in a fare dispute). This tribunal has at times recommended a penalty less than revocation for fare disputes that involve the physical restraint of a passenger but no assaultive blows. See, e.g., Ogieva, OATH 0034/16 at 11 (where driver grabbed and held on to the passenger s purse which was on her arm during a fare dispute, ALJ recommended a three-month suspension and a fine). Under circumstances similar to the one here, the Commission has recently modified a revocation recommendation to a penalty requiring completion of an anger management course that would allow for the restoration of the driver s TLC license. See Choo, OATH 720/16 (where driver harassed and hit a passenger over a fare dispute, ALJ recommended revocation of the driver s hack license and a fine of $3,000. The Commission in Executive Session lifted the license revocation, converted it into a suspension with license reinstatement conditioned on completion of anger management course and reduced the fine to $0.00). Here, the option of a mandated anger management course is not available to this tribunal. Further, the following factors weigh in favor of a penalty of revocation and of the maximum fine allowed: respondent s short tenure as a licensee, his poor TLC record that includes two

- 11 - suspensions, his insistence that his admitted conduct of chasing and restraining the passenger was justified, and his lack of remorse for any of his actions. Monetary fines for violations of TLC Rules 54-12(f) and (g) range from $350 to $1,000, and from $500 to $1,500, respectively. 35 RCNY 54-12(f), (g). Therefore, the maximum penalty would be $2,500. However, TLC Rule 68-13(b)(6)(C) provides that recommended penalties in a discretionary revocation proceeding heard at OATH may include a fine not to exceed $1,000 for each offense for which a Licensed Driver is found guilty. 35 RCNY 68-13(b)(6)(C). Thus, under this rule the maximum penalty would be $2,000.

- 12 - Accordingly, I recommend revocation of the respondent s TLC license and a fine in the amount of $2,000. October 14, 2016 SUBMITTED TO: MEERA JOSHI Commissioner APPEARANCES: SCOTT ROMANO, ESQ. STAS SKARBO, ESQ. Attorneys for Petitioner MARIO BEHAR Self-represented Respondent Noel R. Garcia Administrative Law Judge