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Dep't of Health and Mental Hygiene v. Zahar

OATH Index No. 661/06 (Nov. 22, 2005)

Mobile food vendor licensee found guilty of more than four violations of the provisions of the Administrative Code and Health Code within a two-year period. ALJ recommends revocation of license.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF HEALTH AND MENTAL HYGIENE

Petitioner

- against -

ABDUL F. ZAHAR

Respondent

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REPORT AND RECOMMENDATION

DONNA R. MERRIS, Administrative Law Judge

This license revocation proceeding was referred by petitioner, Department of Health and Mental Hygiene, pursuant to section 17-317 of the Administrative Code of the City of New York (Administrative Code), sections 5.05 (e) and 89.13 of the New York City Health Code (Health Code), and section 7-02 of title 24 of the rules of the City of New York. Respondent Abdul F. Zahar, a mobile food vendor licensee, is charged with having been found guilty of more than four violations of various provisions of subchapter 2 of chapter 3, title 17 of the Administrative Code within a two-year period (ALJ Ex. 1). See Admin. Code § 17-317(a)(2), (b); Health Code § 89.13 (Lexis 2005).

A hearing on the charges was scheduled to be conducted before me on November 17, 2003. On that date, petitioner appeared and submitted proof of proper service of the petition and notice of hearing on respondent by certified and regular mail at his last known address of record, which every vendor is required to keep current with the Department (Pet. Exs. 1, 2). See Admin. Code § 17-312; Health Code §§ 89.03(f)(1) & (l) (Lexis 2005). Such evidence established the jurisdictional prerequisites for finding respondent in default under section 1-23 of the rules of this tribunal and the matter was submitted on papers.

ANALYSIS

The affirmation of Steven Linden, Director of Licensing at the Department, and documents attached (Pet. Ex. 2) established that respondent's most recent license (No. HO5-1105627) was issued on April 18, 2005 and expires on March 4, 2006.

Petitioner submitted the affirmation of James J. Macron, general counsel to and custodian of the records of the Environmental Control Board ("ECB") of the New York City Department of Environmental Protection (Pet. Ex. 3). The affirmation and certified documents submitted by petitioner establish that during calendar years 2003 and 2004 (through February 8, 2005), respondent was served personally with at least 30 Notices of Violation ("NOV") of Administrative Code sections17-311 and 17-315 (a), (e). The documents further establish that hearings on the 30 charges were scheduled for various dates from April 29, 2003 through February 8, 2005, and that respondent failed to appear at all but two of the scheduled hearings. Respondent was found in default on 28 of the hearings. All of the violations were sustained by ECB. Civil penalties were docketed as judgments against respondent under section 1404 of the New York City Charter (Pet. Ex. 3).

FINDINGS AND CONCLUSIONS

1. Respondent was properly served with the charges and notice of hearing.

2. Respondent has been found guilty of 30 violations of various provisions of subchapter 2 of chapter 3, title 17 of the Administrative Code between April 29, 2003 and February 8, 2005.

THEREFORE:

I find that petitioner has established that respondent has been found guilty of more than four violations of subchapter 2 of chapter 3, title 17 of the Administrative Code in a two-year period, as charged.

RECOMMENDATION

Respondent, Abdul F. Zahar, has been found to have committed at least 30 violations of various provisions of subchapter 2 of chapter 3, title 17 of the Administrative Code of the City of New York in a two-year period. He did not appear at the hearing to assert any defense to the charges. Respondent's failure to appear for his scheduled hearings or to pay fines owed on his previously adjudicated violations evidences a contemptuous disregard for the rules of the regulatory scheme to which he was issued a food vendor license. Such a violation history justifies revocation of respondent's license and a denial of any renewal of the license by the Commissioner, and I so recommend.

Donna R. Merris

Administrative Law Judge

November 22, 2005

SUBMITTED TO:

THOMAS FRIEDEN, M.D., M.P.H.

Commissioner

APPEARANCES:

JANET GALLAGHER, ESQ.

Attorney for Petitioner

No appearance by or for Respondent