Taxi & Limousine Commission V. Serhat Battaloglu, Appeal # 5130074

Taxi & Limousine Commission v. Serhat Battaloglu, Appeal # 5130074

Taxi & Limousine Commission v. Serhat Battaloglu, Appeal # 5130074

BACKGROUND

The New York City Taxi & Limousine Commission (“Commission”) filed an appeal of the decision of Administrative Law Judge (“ALJ”) Lisa Strax, dated April 24, 2007, wherein the ALJ dismissedat inquest the Rule 2-25H[1] charge that was issued in connection with summons number 1125756A because the ALJ found that use of a blue tooth/speakerphonewas not deemed to be within the scope of the TLC Rule prohibiting “use” of a cell phone while operating a taxicab.

On May 14, 2007, pursuant to Rule 8-13C, the Commission filed an appeal requesting that the ALJ’s decision dismissing the Rule 2-25Hviolation be reversed and the matter rescheduled for a hearing.On appeal, the Commission argues that the ALJ erred in dismissing the Rule 2-25Hviolation because the Rule prohibits using a phonewhile operating a taxicab unless such taxicab is lawfully parked and does not “state dialing”. The Commission argues that the Rule was intended to prevent diverting a driver’s attention away from driving by talking on the phone.

Respondent did not file a response to the Commission’s appeal.

ANALYSIS

A review of the record reveals that the respondent failed to appear for a hearing on 4/24/07 and that summons number 1125756A alleged a violation of Rule 2-25H for “talking into his Samsung/T-mobile phone via earpiece.”The narrative of the summons further alleged that “driver picked up 2 TLC personnel on refusal operation. Driver dialed phone and spoke to his father to get directions to Foster Avenue.” The ALJ drew a distinction between use of a cell phone and use of a wireless earpiece, found that the TLC Rule did not define “use” of a phone and relied on the definition provided in NYS VTL §1225-c(1)(c) that states that “using” is defined as “…holding a mobile telephone to, or in the immediate proximity of, the user’s ear.” The ALJ concluded that using a blue tooth/speakerphone was not within the scope of Rule 2-25H.

The ALJ erred as a matter of law when she found that the “use of a blue tooth/speakerphone only is deemed not to be within the scope of the violation.”Any use of a telephone while operating a taxicab, unless lawfully standing or parked, is a violation of Rule 2-25H. Tchagoma Abgassaou, 5130074, February 7, 2008. A reasonable interpretation of the meaning and intent of Rule 2-25H makes reliance on the VTL unnecessary as the Rule’s purpose is to ensure public safety by operating a taxicab without the driver’s attention being diverted by talking on the phone. Use of a blue tooth or other hands free device involves functions such as attaching the device to one’s ear, turning the device on and off, adjusting the device’s volume, making, receiving and/or ending telephone calls. As such, use of a hands free device to communicate via cellular phone constitutes “use of a telephone” prohibited by Rule 2-25H. The ALJ’s conclusion that a taxicab driver is not in violation of the Rule when using a hands free device is not supported by a reasonable interpretation of the Rule. Had the Commission wanted to make an exception to the rule for hands free devices, speakerphones or earpieces, it would have done so.

DECISION

Accordingly, with regard to the dismissal of the Rule 2-25Hviolation for summons number1125756A, the decision isreversed. Pursuant to Rule 8-13D,the Rule 2-25Hviolation is hereby reinstated and remandedfor a hearing.

Dated: March 3, 2008

Charles R. Fraser

Deputy Commissioner for Legal Affairs

By: D. Rivers

Administrative Law Judge, Appeals Unit

Printed on paper containing 30% post-consumer material.

[1] Using cellular telephone while operating a taxicab.