Taxi & Limousine Comm'n V Sheikh

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Taxi and Limousine Comm’n v. Sheikh

OATH Index No. 143/08(Sept. 13, 2007)

In revocation proceeding, respondentwas found to haveovercharged two passengers, failed to engage his taximeter, made multiple false statements, failed to provide receipts, and submitted a fraudulent trip sheet. ALJ recommended revocation of respondent’s license and fines totaling $7,300.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

TAXI AND LIMOUSINE COMMISSION

Petitioner

-against-

MOHAMMAD ABDULHAQUE SHEIKH

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER,Administrative Law Judge

This proceeding was commenced by the Taxi and Limousine Commission against respondent, Mohammad Abdulhaque Sheikh, pursuant to the Administrative Code and the Taxicab Drivers rules, title 35, chapter 2 of the Rules of the City of New York (RCNY). Petitioner alleges that respondent overcharged two passengers, failed to engage his taximeter, made multiple false statements, failed to provide a receipt, and submitted a fraudulent trip sheet.

A hearing was held before me on August 14, 2007. Petitioner presented the testimony of an investigator and sworn statements from the two passengers, as well as other records which conflicted with respondent’s prior statements.Respondent insisted that he was not driving at the times of the two overcharges and accused a fellow driver, Mohammed Ahmed, of having driven both complainants. The parties were given two weeks to file legal memoranda on the issue of whether several of the charges were foreclosed under the principle of res judicata. Although no legal memoranda were filed, respondent’s attorney submitted a written closing on August 28, 2007.

For the following reasons, I find that respondent was the driver who overcharged both passengers and then concocted a series of false denials. All but 3 of the 16 specifications should be sustained and I recommend thatrespondent’s hacklicense be revoked. In addition, I recommend that respondent be fined $7,300.

ANALYSIS

This case concerns two passenger complaints of overcharges against the driver of medallion number 4D75. Both complaints were previously adjudicated at the Commission, with respondent’s conviction of one complaint being vacated and his being found not guilty of the other. When petitioner became aware that respondent might have submitted false evidence in the prior adjudications, a new investigation was begun. The instant charges followed.

The first complaint (Pet. Ex. 6) was received on November 28, 2006, from Virginia Lew. Ms. Lew, a resident of Denver, Colorado, wrote that at 3:10 p.m. on September 28, 2006, she, her husband, and mother-in-law entered a taxi cab, medallion number 4D75, at the W Hotel on Lexington Avenue in Manhattan to go to La Guardia Airport. She noticed that the driver was Indian or Pakistani, had a first name beginning “Moh” and a last name beginning “She.” The driver first stated that it would cost a flat fee of $60 to take them to LaGuardia, which Ms. Lew knew was far in excess of the $27 it had cost to come into Manhattan from LaGuardia. The driver did not turn on his taximeter and repeatedly asked, “Is $60 all right?”

Ms. Lew told the driver that $60 was too much and they would not pay. She telephoned the Taxi and Limousine Commission complaint number posted in the cab and was told the average fare to go to LaGuardia should be around $22. The driver then claimed that he had received $10 from the W Hotel bellman, who had promised him $60. Ms. Lew called the W Hotel and spoke with the bellman, who denied giving the driver any money and advised Ms. Lew to pay $30 and get out of the cab. At this point, the driver said the fare was $50. Then he said, “Okay, then don’t give me any money.”

The driver finally dropped off the Lews at the airport and Ms. Lew’s husband handed him $30, saying, “This is what the fare is worth and we hope you remember that what you did was wrong.” The driver smiled and walked away without providing a receipt.

As a result of Ms. Lews’s complaint, respondent was charged with violations of sections 2-61(a)(2), 2-61(a), and 2-34(a) of the driver’s rules under summons 379857C. The summons went to a hearing on May 10, 2007, at which respondent failed to appear. An administrativelaw judge issued a decision (Pet. Ex. 9) on that date revoking respondent’s hack license. Six days later, on May 16, 2007, respondent submitted a written motion to vacate form to a different administrative law judge, stating that he was “told not to appear by T.L.C.” and he was “the wrong driver.” Writing that “Ms. E. Henry” confirmed that respondent’s statement was correct, the judge granted respondent’s motion to vacate. See Pet. Ex. 9.

After being sent a photo array consisting of six photos, including photos of respondent, Mohammed Amed, and a third driver who also drove medallion 4D75, Ms. Lew sent an email (Pet. Ex. 8) to the Commission on June 14, 2007, indicating that respondent’s photo was that of the driver who had overcharged her.

The second complaint (Pet. Ex. 1) was received on January 31, 2007, from Geoffrey Houghton, a resident of West Yorkshire, England. Mr. Houghton wrote in his complaint that, on January 1, 2007, he, his wife, and teenage son entered a taxicab at the Helmsley Hotel on 42nd street to go to Battery Park. After driving only 50 yards, the driver turned off the taximeter and said that the fare would be $60, which would “save me but cost him.” At the end of the ride, Mr. Houghton paid the driver $60. The driver laughed and said it was normal to give a $10 tip, which Mr. Houghton declined to do. After the return taxi ride from Battery Park to the hotel cost only $11, Mr. Houghton realized he had been overcharged and filed a complaint with the Commission.

Based upon Mr. Houghton’s complaint, respondent was charged with violations of sections 2-61A2, 2-42A, and 2-34A of the driver’s rules under summons 379896C. The charges were heard on March 21, 2007. According to the administrative law judge’s decision (Pet. Ex. 3), respondent appeared and provided a trip sheet which indicated he started his shift at 10:30 a.m. He contended that another driver, Mohammad Ahmed,was driving the cab at the time of the incident. The judge credited respondent’s testimony and dismissed the charges against respondent.

Thereafter, Mr. Ahmed was charged with the same violations and he appeared at a hearing on May 30, 2007. According to the administrative law judge’s decision (Resp. Ex. B), Mr. Ahmed testified that he was not the driver at 9:30 a.m., having turned the cab over to respondent. Mr. Ahmed produced trip sheets for January 1 and the remaining nights of the week “establishing that he is night driver of medallion 4D75.” The judge noted that Mr. Ahmed also testified that he turned the taxicab over to “Sheikh Rahman,” at the home address of respondent. The judge adjourned the matter pending “issuance of summonses to all three drivers.”

After being sent the same photo array sent to Ms. Lew, Mr. Houghton sent an e-mail (Pet. Ex. 2) on June 4, 2007, identifying respondent as the driver who had overcharged him.

At the hearing before me, petitioner called Mr. Ahmed as a witness. He testified that, since the summer of 2006, he has driven taxicab 4D75 from 5:00 p.m. until 5:00 a.m., with respondent working the day shift from 5:00 a.m. until 5:00 p.m. (Tr. 49). On January 1, 2007, Mr. Ahmed completed his last fare at around 3:15 a.m. and began driving back to Queens to deliver the cab to respondent. He recalled respondent calling him twice at around 4:00 a.m. to check where he was. After filling the taxicab with gas, Mr. Ahmed drove to respondent’s residence, calling him from downstairs. Respondent then drove Mr. Ahmed back to his residence and then started his shift (Tr. 50-54). In support of his testimony, Mr. Ahmed produced his trip sheet (Resp. Ex. A) and cell phone records (Pet. Ex. 11). The phone records show two calls from respondent to Mr. Ahmed at 4:02 a.m. and 4:25 a.m. on January 1, 2007. They also show a call from Mr. Ahmed to respondent at 4:31 a.m.

Investigator Azam Kifaieh testified that he called respondent on June 18, 2007, and asked him about the January 1, 2007 incident. Respondent denied that he was driving and promised to bring in his trip sheet to the Commission offices (Tr. 14-15). Respondent appeared at the Commission on June 22, with his attorney and Mr. Ahmed, and denied driving the taxicab on either September 28, 2006, or on January 1, 2007 (Tr. 29).

At the August 14, 2007 hearing, respondent repeated the accounts he had given at the two previous hearings. He denied that he was the driver for either Ms. Lew or Mr. Houghton. As to the Lew complaint, he insisted that he was not working on September 28 because his wife was in the hospital giving birth. He produced a birth certificate and hospital records (Resp. Ex. C) showing that his daughter was born at 10:47 p.m. on September 26, 2006, at ElmhurstHospital and was discharged on September 29. He insisted that he called Mr. Ahmed, who took care of getting another driver. Respondent stated that he did not return to driving the taxi until September 29 (Tr. 79-80).

Respondent contended that, on January 1, 2007, he did not begin his shift until 10:30 a.m. Tr. 81), as confirmed by the trip sheet (Pet. Ex. 4) he had produced at the previous Commission hearing. He stated that Mr. Ahmed did not drop off the taxicab, but parked it somewhere in Queens, and denied that he drove Mr. Ahmed home (Tr. 82). He stated that he “sometimes” forgets to take his hack license out of the cab (Tr. 95), explaining how Ms. Lew and Mr. Houghton could have gotten his name.

Petitioner produced EZ Pass records (Pet. Ex. 5) obtained from the medallion owner, Jacob Kuruvilla. These records were inconsistent with the fares recorded on respondent’s trip sheet. The trip sheet indicates that between 12:30 p.m. and 1:05p.m., respondent drove a fare from Church Street to Wall Street. The EZ Pass records show that at 1:14 p.m. the cab traversed theTriboroughBridge. Although respondent’s counsel challenged the reliability of the EZ Pass records, it was clear that they were far more reliable than the handwritten trip sheet produced by respondent. Counsel’s argument that someone could have removed the EZ Pass from the taxicab was sheer speculation, unsupported by any evidence. The suggestion also seemed highly implausible, since taxicabs are required to have an EZ Pass and, according to the medallion owner, this EZ Pass was assigned only to medallion 4D75.

Petitioner also produced affidavits (Pet. Exs. 7 and 10) from the medallion owner, Georgi Kezeli, stating that, according to his records, respondent was driving medallion 4D75 on both September 28, 2006, at 3:10 p.m. and on January 1, 2007, at 9:30 a.m.

Respondent’s testimony was halting, muddled, and extremely difficult to understand. Part of this was due to his heavy accent. But more of the confusion seemed to lie in his inability to offer plausible explanations for any of the multiple documents contradicting his statements. When asked about January 1, he initially stated he was “not working that day” (Tr. 83). When asked why he started his shift on January 1 at 10:30 a.m. instead of his usual starting time of 5:00 a.m., he later stated that he was “sleeping late” (Tr. 87). When asked why he placed the telephone calls to Mr. Ahmed before 5:00 a.m., he initially stated, “I don’t know. I’m not call. Maybe, maybe he called . . . miscalled” (Tr. 83). He then suggested, “Maybe I called him, if you want more work, work because I’m not go to work early. I go to work late” (Tr. 84). Respondent ventured no explanation as to why Mr. Ahmed would have called him at 4:30 a.m. if respondent had told Mr. Ahmed he would be “sleeping late.”

Respondent was asked why his trip sheet for January 1 indicated a pick-up at Church Street in Manhattan at 1:15 p.m. while the EZ pass records for the vehicle showed that it was crossing the TriboroughBridge at 1:14 p.m. In a lengthy but largely incoherent answer, he seemed to say that the times on his trip sheet were often entered later and might not be exact and also that “EZ pass is sometime . . . . later write down,” apparently understanding that the EZ pass report was based upon his own notations of usage rather than generated from a computerized database (Tr. 92). Tellingly, never once in his rambling explanation for the discrepancy between the EZ Pass records and his trip sheet did respondent indicate that his taxicab had no EZ Pass on that date.

Respondent’s testimony that he did not work on September 28, 2006, because his daughter was born two days earlier was also not convincing. Other than the birth and hospital records (Resp. Ex. C) showing his daughter was born on September 26, 2006, at 10:47 p.m. and that his daughter was discharged from the hospital three days later on September 29, he offered no corroboration for his contention that he ceased working for three days. I found it plausible that respondent might choose to be with his wife on these days. However, I found that the other evidence, including the undisputed testimony that respondent was the regular daytime driver and Ms. Lew’s positive identification of respondent’s photo from a photo array including the other two drivers, was far more persuasive than respondent’s testimony. This evidence wassufficient to find that respondent was the driver who overcharged Ms. Lew on September 28, 2007.

I found Mr. Ahmed to be a more truthful witness than respondent. His account was corroborated by his cell phone records, showing three cell phone conversations with respondent on January 1. Notably, while Mr. Ahmed provided a detailed and plausible explanation for these three calls, respondent initially professed to have no recollection of the calls, and then suggested that “perhaps” he called Mr. Ahmed to tell him he would start his shift late. While it is true that Mr. Ahmed and respondent had an equally compelling motive to deny driving the taxicab at the time of the two passenger complaints, Mr. Ahmed offered the more coherent and consistent testimony.

Based upon this evidence, I therefore found that,on September 28, 2006, at around 3:10 p.m., respondent picked up Virginia Lew, did not turn on his taximeter, attempted to charge her $60, made misrepresentations about a hotel bellman, and did not provide Ms. Lew a receipt. It was undisputed that the fare from midtown to LaGuardia should have been around $27, which is the fare which Ms. Lew paid several days before when she was transported to the hotel from the airport.

These fact-findings are sufficient to sustain violations of Taxicab Drivers rules 2-34(a) (driver prohibited from attempting to overcharge passengers), 2-33(a) (driver must place taximeter in “recording or ‘Hired’ position” when cab is occupied), and 2-46(b) (driver shall give passenger a receipt). Respondent’s false statements concerning the hotel bellman violate rule 2-61(a)(1)(driver shall not commit “any act of fraud, misrepresentation or larceny against a passenger”) and 2-61(a)(2) (driver shall not act “against the best interests of the public”). Specifications 1, 2, 4, and 6 must be sustained.

I do not find the proof sufficient to sustain two of the violations. The facts here do not support a violation of rule 2-33(b) (driver must place taximeter in “non-recording or ‘Time Off’ position” after reaching destination) because respondent apparently never turned the taximeter on and therefore cannot logically be held accountable for not turning the taximeter off. Specification 3 should be dismissed. The evidence does not support an independent violation of rule 2-61(a)(2) (driver shall not act “against the best interests of the public”) for the statements made about the bellman. While respondent’s false remarks may very well violate this rule as well as the rule prohibiting misrepresentations, he should not be punished a second time for the same misconduct. Specification 5 should also be dismissed.

I further find that, on January 1, 2007, at around 9:30 a.m., respondent picked up Geoffrey Houghton, turned off his taximeter before the trip was completed, charged Mr. Houghton $60, and told Mr. Houghton that it was normal to also tip the driver $10. It was undisputed that the trip between Battery Park to the hotel should have cost approximately $11, the amount Mr. Houghton paid for the return fare.

These fact-findings are sufficient to sustain violations of rule 2-34(a) (driver prohibited from overcharging passengers), 2-33(b) (driver must place taximeter in “non-recording or ‘Time Off’ position” after reaching destination), and 2-34(d) (driver shall not ask passenger for a tip). Specifications 8, 9, and 10 must be sustained.

Respondent made statements concerning the two incidents at the March 21, 2007 hearing, at the May 15, 2007 hearing, and during June 18 and 22, 2007 interviews with an investigator. As established by the evidence at the August 14 hearing, those statements were shown to be false, in violation of rule 2-61(a)(1) (driver shall not commit “any act of fraud, misrepresentation or larceny against a . . .Commission representative”). Specifications 7, 11, 12, 15, and 16 must also be sustained.

One of the false statement violations is duplicative and cannot be sustained. Specification 14 alleges that respondent’s false statements at the March 21, 2007 hearing constituted a violation of rule 2-61(a)(2) (driver shall not act “against the best interests of the public”) because he “falsely implicate[d] an innocent driver.” Again, while respondent’s false remarks may very well be against the public interest, he should not be punished a second time for the same misconduct. Having sustained a violation of rule 2-61(a)(1), specification 5 should also be dismissed.